Chicago, Burlington & Quincy Railroad v. Magee

Citations

• 60 Ill. 529

Syllabus

<p>1. Pleading — duplicity. Where a count in a declaration averred that a railway company failed to fence its road, and that a train was run, conducted and directed carelessly, whereby plaintiff’s horse was killed: Sdd, that plaintiff might recover on proving either ground; that the declaration was obnoxious to a demurrer for duplicity, but both grounds were traversed by filing the general issue.</p> <p>2. Allegations and pkoofs. Where the plaintiff avers, in his declaration, that defendant carelessly “ran, conducted and directed” its train, it is error to instruct the jury that they might consider the condition óf the brakes employed. The action was for carelessness, and not for a failure to properly equip their road.</p> <p>3. It .was error to instruct the jury that, if trie road was not so fenced • as to pi'event the horse from getting upon it, they were bound, under any circumstances, to find for the plaintiff. There was evidence tending to show that the horse came upon the road through an open gate. If this was true, plaintiff could not recover, unless the gate had been so long open as to raise the presumption that the servants of the company knew it, or to charge them with negligence. The instruction excluded from the jury the consideration whether, if the horse came through the open gate, the company was chargeable with carelessness.</p>