27 Ill. 178 | Ill. | 1862
This was an action against the railroad company, for killing the plaintiff’s cow. The plaintiff relied not upon the negligence of the defendant in running its locomotive, but upon its neglect to build and maintain a fence, as required by the statute, at the place where the cow was killed. The counsel for the appellant insists, that the proof does not show that at the point where the cow was killed, the company was required by law to keep up a fence. In this we think he is entirely mistaken. The law does not require a stereotyped set of words to be used, in order to prove a case against a railroad, any more than in any other case. It is sufficient, if the testimony is such as reasonably to convince the mind of the existence of the necessary facts. It is said that the proof does not show that the cow was not killed in a town or village. The witness says, it was outside of the houses of the town. The presumption is, that the houses compose the village, and if the place where the cow was killed was beyond them, it was beyond the village. If the town extended beyond the houses, the defendant should have shown it. The witness did not say that the cow was not killed at a road-crossing, but he did state, that it was at a point where there should have been a fence, and as that could not have been true had there been a road-crossing there, it is sufficient to convince the judgment of a reasonable man, that there was no road-crossing there. But several witnesses swore to the value of the cow, without stating her color, size, age, breed, or other peculiarities. This was quite consistent with the universal practice of courts, so far as our experience enables us to judge, and it was for the defendant, if it was deemed important, to have inquired as to these particulars. Every one is presumed to have some idea of the value of property which is in almost universal use, and it is not necessary to show that a witness is a drover or a butcher, before he is allowed to give an opinion of the value of a cow. If it were a steam engine, or a diamond ring, it might be different.
"We think the proof abundant to sustain the action, and the judgment must be affirmed.
Judgment affirmed.