97 Ill. 253 | Ill. | 1878
delivered the opinion of the Court:
The judgment in this case must be reversed. Appellee was the tenant of Miller, and as such was in possession of a farm adjoining the railroad of appellant. Miller, in 1873, contracted with the railroad company to construct a good and sufficient fence along the line between his land and the strip of land on which the track lay, and to maintain the same for ten years. He built a fence, apparently good and sufficient. In the latter part of 1874, Miller let his farm to appellee. In the spring of 1875, appellee (as "was his duty as a tenant, having knowledge of his landlord’s undertaking,) repaired this fence. In August,-1875, appellee, with full knowledge of the condition of the fence, turned his horses and mules into a pasture adjoining the railroad land, and separated from it by this fence. One horse was breachy. During the night this breachy horse and two mules escaped from the pasture into the inclosure of the railroad track, through a breach in the fence not shown to have been there before, and by a passing train the mules were killed and the horse injured.
. This is an action brought by appellee under the statute, in which he recovered double the amount of his actual damages, upon the ground that the railroad company had failed to construct and maintain a good and sufficient fence. In this action the railroad company is charged with no other fáult.
This statute is highly penal. Ho recovery can be had under it without clear proof of clear omission of duty. The fence was apparently good. There is no proof in the case tending to show that it was not amply sufficient to protect the track from the incursion of horses which were not more prone to break fences than usual. It is shown that the lower rails were not strong, were tender,—decayed with what the witnesses called “ dry rot,”—but the upper rails were strong, and it was higher than ordinary fences. Instead of the proof showing, clearly, that these animals escaped by reason of a defective fence, the weight of the proof tends to show that they escaped by reason of the fault of the breachy horse. Be this as it may, the landlord having built the fence and taken upon himself to maintain it, as between him and those holding under him with knowledge of his duty, on the one part, and the railroad company on the other, the duty of maintaining and repairing the fence did not rest on the railroad company. Neither Miller nor his tenant can complain that the fence was not such as it should have been.
The judgment must be reversed' and the cause remanded.
Judgment reversed.
