St. Louis, Alton & Terre Haute Railroad v. Todd

Citations

• 36 Ill. 409

Syllabus

<p>1. Agreement —fencing railroads. A verbal agreement between a property owner, through whose field a railroad passed, that if the company would erect certain cattle-guards, they need not fence the sides of their road, and he would not claim damage for injury done by the road to his stock getting thereon from the field, does not pass to or bind his grantee of the premises.</p> <p>2. Negligence—relative. Negligence is relative, and although a plaintiff has been guilty of negligence, he may hold the defendant liable, if he has been guilty of a higher degree of negligence, in producing the injury. Slight negligence on the part of a plaintiff does not absolve a defendant from the use of care and all reasonable efforts to avoid the injury; it does not license him to destroy plaintiff’s property.</p> <p>3. Railroad —fences. The failure of a railroad company to fence their track as required by the statute, is negligence. It was also negligence in the owner of horses to place them in a field through which an unfenced railroad passed, having on blind bridles. He had the right to place them in the field, but not so blinded that they would be incapable of avoiding danger. The question of the degree of negligence of the two ' parties, is one for the determination of the jury.</p> <p>4. Instruction. The court should have given an instruction, that if it was proved that the plaintiff was guilty of negligence, the railroad company would only be liable for negligence which implies willful injury. But a failure of the company to fence their road, and the killing of property thereon, which could be avoided by reasonable efforts, would amount to such injury But this is a question for the jury.</p>