Newkirk v. Milk

Citations

• 62 Ill. 172

Syllabus

<p>1. Texas azto Cherokee cattle—different owners—which liable for infection. Where two separate lots of Texas or Cherokee cattle, owned and in the possession of separate owners in this State contrary to the statute of 1867, were each on the same feeding ground or section where the cattle of the plaintiff were being herded, and plaintiff’s cattle became infected, from which they died, the court, in a suit against the owners of one lot of these cattle, instructed the jury, that if plaintiff’s cattle took the disease from either lot of the Texas cattle, and the testimony as to which lot communicated the disease was equally balanced, to find for defendants: Held, that the instruction was erroneous. If both lots of cattle contributed to infect plaintiff’s cattle, so that it was impossible to say that one lot was more concerned in doing so than the other, it seems that the defendants were liable.</p> <p>2. In such a case it is not error to refuse an instruction for the plaintiff that if the Texas or Cherokee cattle that were on the section where plaintiff’s cattle run, infected plaintiff’s cattle with disease, of which they died, then the defendants were liable, and could not be acquitted on the ground that the damages might have accrued from the acts of the owners of the other lot of cattle. If the disease was contracted from the other lot of cattle, defendants were not liable.</p> <p>3. Neither was it error to refuse an instruction that if Texas or Cherokee cattle imparted the disease to plaintiff’s cattle, without limiting it to defendants’ cattle, the jury should find defendants guilty.</p>