Toledo, Peoria & Warsaw Railway Co. v. Pence

Citations

• 68 Ill. 524

Syllabus

<p>1. Negligence—neglect to fence road by railway company. Where a railway company kills- stock with its train not at a public crossing or other place where it is required to fence its track, and has been in operation for more than six months prior to the accident, and has not fenced its track at the place where the killing took place, and the owner of the land has not agreed to fence the road, the company will be liable to the owner of such stock, under the act of 1855, without proof of any actual negligence, even though the owner may not prove the stock got upon the track at the point not fenced.</p> <p>3. The design of the act of 1855, on this subject, was, to afford some protection from hazard of trains running at a high rate of speed, by fencing, and if this is omitted by a railroad company, it will be presumed to be guilty of negligence, without any other proof than of the omission to fence.</p> <p>3. Same—burden of proof as to exceptions not in enacting clcmse of the statute. In a suit to fix the liability of a railroad company for killing stock, on the ground of a neglect to fence its track, if the land-owner has received a specific sum for fencing along the line, or had agreed to build and maintain a lawful fence, or had received compensation for so doing by way of damages in the condemnation of the land, the burden rests upon the company to show such fact in defense, and not upon the plaintiff to negative it.</p> <p>4. Same—effect of act of 1869 on company's liability. The act of 1869, giving the land-owner the right to build a fence along the railroad track over his premises, and hold the company liable therefor, upon its failure to fence on notice, docs not release railroad companies from their liability, under the act of 1855, for stock killed. The later act creates no duty upon the land-owner to fence, but merely gives him the privilege to do so, and the fence, when so built by the owner of the land, will be the property of the company.</p> <p>5. Bailb