Rockford, Rock Island & St. Louis R. R. v. Lynch

Citations

• 67 Ill. 149

Syllabus

<p>1. Negligence—where plaintiff declares upon statutory liability, his right of recovery will be limited accordingly. In an action against a railroad company to recover for the killing of stock, where the plaintiff declares upon the statutory liability, growing out of a neglect to fence the road within six months after the same is opened and used, no recovery can be had unless the company was bound to fence its road.</p> <p>3. Same—plaintiff only bound to prove the negligence alleged in his declaration. Where the plaintiff declared against a railroad company in a suit to recover damages for stock killed, charging negligence in failing to have its road fenced in the time required by the statute, the defendant asked, and the court refused to instruct the jury, that, if the cattle were killed by the trains upon defendant’s road, it was incumbent upon the plaintiff to show that the damages were caused by the negligence of the defendant: Held, that the instruction was properly refused, as the jury might have inferred from it that it was necessary for the plaintiff to prove wilful negligence, or some other negligence than the fact of the killing and the omission to fence.</p> <p>3. In such a case, it is sufficient for the plaintiff to prove the killing of his cattle by the trains of the company, and its neglect to fence. Such proof makes a prima facie case of liability.</p> <p>4. Same—duty of plaintiff to dispose of cattle hilled. Where a railroad company, by its trains, killed cattle of the plaintiff which had strayed upon its unfenced track, and they were mangled, bruised and swollen when discovered, it was held that the plaintiff was not required to use diligence to dispose of their dead bodies to entitle him to recover their full value.</p> <p>5. Same—right of defendant to show its discharge from obligation to fence. Where a railroad company was sought to be made liable for killing stock, on the ground of its neglect to fence its track, it offered in evidence the rec