Toledo, Wabash & Western Railway Co. v. McGinnis

Citations

• 71 Ill. 346

Syllabus

<p>1. Negligence—railroad companies must use all due diligence to avoid injury to persons and property. Whilst railroad companies are not required or permitted to fence their tracks in an incorporated town, still they are bound to use all due and proper diligence to avoid injury to property.</p> <p>2. And the}' are not relieved from the duty of exercising such diligence as to stock wrongfully running at large or trespassing on their track or right of way.</p> <p>3. Same—failure to apply brakes. To run a train composed of six or eight cars without a brakeman, is gross negligence; and when such a train is in motion, and there is apparent danger, such as to induce the engine-driver to whistle for putting on the brakes, and there is a brakeman on the train and he fails to apply the brakes, this implies gross negligence.</p> <p>4. Contributory and comparative negligence. Although a plaintiff may be guilty of negligence which contributed to the injury complained Of, he may still recover, if his negligence is slight and that of the defendant is gross, as compared with that of the plaintiff.</p> <p>5. In an action against a railroad company for killing a colt, the evidence was, that the colt was on the railroad track when a train of several cars approached, and the engine-driver whistled for putting on brakes, which was not done, and it appeared that if the brakes had been applied in obedience to the signal, the train could have been controlled so as to prevent the accident, and no explanation was made why the brakes were not applied: Held, that even if the plaintiff was negligent in permitting the colt to run at large, his negligence was slight and that of the defendant gross, and that plaintiff was entitled to recover.</p>