Gilman, Clinton & Springfield Railroad v. Spencer

Citations

• 76 Ill. 192

Syllabus

<p>1. Negligence—ingury to stock by railway company. Where a railway company is under no statutory liability for injury to stock by its trains by reason of its road not having been fenced, as, when the road has not been open for use six months, the only ground of liability will be that the injury might have been avoided by the exercise of ordinary care and prudence, and its servants in charge failed to exercise such care and prudence.</p> <p>3. Same —failure to use care not alone sufficient. Where a railway company, whose road had not been in operation six months before an accident, was sued for an injury to plaintiff’s hogs, the court instructed the jury that, if they believed, from the evidence, that the hogs were killed by defendant’s engine, and that defendant’s servants failed to use ordinary care to prevent the killing, the defendant was liable: Held, that the instruction was erroneous, as excluding the necessary.element that the injury might have been avoided by the exercise of ordinary care and prudence, and made the liability depend upon not attempting to prevent the injury whether it would have availed or not.</p>