| Ill. | Jan 15, 1865
delivered the opinion of the Court:
It is insisted that the verbal agreement between Messer and the company passed with the land, and became binding upon his assignees and those holding under them. Eor aught that appears, Mrs. Serine may have had no notice of the agreement, and even if she had, we are at a loss to perceive how a mere verbal agreement of her grantor could affect her rights. The law imposes the duty upon the company of fencing their road, so as to prevent stock from getting upon it. And a mere agreement, or verbal license of an owner, releasing them from that duty, however valid and binding on them, cannot affect •the rights of other persons not parties or privies. Strangers to the agreement could not be bound by it, and there is no evidence that Mrs. Serine, or defendant in error, ever became parties or privies. There was no covenant or agreement on her part to keep and perform Messer’s agreement. It is not pretended that it is a covenant that runs with the land. It was, at most, a mere personal agreement, binding alone on Messer and the company, and was not assignable like commercial paper nor did it attach, or in any manner become annexed to, the land.
Had there been no agreement between Messer and the company, and the road had not been fenced, it is manifest that the company would have been liable for injury to stock getting upon the road. And we see that the company have not complied with the requirements of the law, nor have they been released from liability by any person but Messer. If before he sold, other people’s stock had entered this field through Messer’s fence, and been injured, we are at a loss to see how the company could have defended against an action by the owner. Hor do we perceive any difference in the cases.
It is, however, insisted that the court below should have given defendant’s fourth instruction. It is this: “If negligence on the part of the plaintiff has been proved in this suit, then the railroad company is only liable for gross negligence, which implies willful injury.” Some of the adjudged cases go the length of holding, that whenever the plaintiff has, by his negligence, contributed to the injury complained of, he has no right to a recovery. But the rule of this court is, that negligence is relative, and that a plaintiff, although guilty of negligence which may have contributed to the injury, may hold the defendant liable, if he has been guilty of a higher degree of negligence, amounting to willful injury. The fact that a plaintiff is guilty of slight negligence, does not absolve the defendant from, the use of care and all reasonable efforts to avoid the injury. The negligence of the plaintiff does not license the defendant to wantonly or willfully destroy plaintiff’s property. Each party must be held to the use of all reasonable efforts to avoid the injury, and the negligence of one party does not absolve the other from diligence and caution.
The company being bound to fence their road, and having failed to perform that duty, were consequently guilty of negligence. It appears that defendant in error turned the horses into the field with blind-bridles on, which would seem to be an act of negligence. The failure of the company to perform their duty, did not authorize other persons to place stock on their road, or to place them so that they would necessarily or most likely get upon the track. Hor did it absolve other parties from using ordinary care to prevent them from getting upon the road. The owner, no doubt, had the right to turn his horses into the field, but in doing so he should not have blinded them, so that they would be incapable of avoiding the danger. If his so placing the horses in the field was greater negligence than that of the company in not fencing, or if his negligence rendered it impossible, with the highest degree of diligence which employees of the road could exercise, to prevent the injury, then he • would have no right to recover. But the company being in default, by not fencing, and that being negligence, the negligence of the owner did not excuse them from the use of every reasonable means within their power to avoid the injury. And the failure of the company, in the employment of such means, would be gross carelessness, amounting to willful negligence. These are proper questions to be considered by the jury, and this instruction, we think, fairly presented them, and it should have been given; and for this error the judgment of the court below is reversed, and the cause is remanded.
Judgment reversed.