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1. i3?HE ILLINOIS FARMER. 



57 



om a deal of work for us; too mach to be 

 disposed of in a few paragraphs. We refer 

 him to the article on gardening which pre- 

 cedes this; and we would say to him, that 

 if he desires good fruit trees, varieties that 

 can be depended on, accustomed to our soil 

 and climate, which can be had fresh from 

 the nurseries; he can do so by sending to 

 the nurseries in his neighborhood, or by ap- 

 plying to the Editor of this paper; who will 

 give him cheerfully all the information he 

 requires. Ffty apple • trees is a small or- 

 chard for any farmei. Good fruit always 

 pays well. •,,-' , , ...:;..-•,, u :,■■ .;-; 



Eaw Intelllgfence. 



■a-: 



Important Decision of the Supremi Court. — 

 Cattle must be kept off the Railroad Tracks. 



The following account of a case recently de- 

 cided in the Supreme Court, is from the proof 

 sheets of the forthcoming seventeenth volume 

 of Illinois Reports. ' ■ ' '-";-- '■ 



The 'Illinois Central Railroad Compdie^; Pldin- 

 t^, in Error, vs. Henry Reed, Plaintiff in 

 Error. : v/;:-; .i ■". ,i-.Mk;r'--^'?'', 



EBEOR TO LASALLE COtTNTt' COCRt. ' 



Trespass vi et arinis, is not the proper fdrm of action f6i in- 

 juries, resnlting from ;tbe negligence of the servants <rf a 

 corporation; trespass on the casie, is the proper action, of 

 which a justice of the peace has not jurisdiction. 



Animals wandering upon the track of an unenclosed railroad 

 ore strictly trespasses, and the company is not liable for 

 their destruction, unless Its servants are guilty of willful 

 negligence, evincing reckless misconduct. 



The burden of proof is on the plaintiff, to show negligence. 

 The mere &ct that aa animal was killed, will not render the 

 company liable. 



In order to show the manner im which railroad trains are 

 conducted, witnesses acquainted with their management, 

 must be examined. 



This was an action of a trespass begun before 

 a justice of the peace, for killing a steer, hy the 

 train of the defendant running upon the raihroad 

 in Lasalle county. Judgment was rendered for 

 the plaintiff below, for twenty-five doll«:sand 

 costs. The case was taken by appeal to i^e 

 Lasalle county court. The ease was submitted 

 to H. G. Cotton, Judge of the county court, 

 without the intervention of a jury, who gave 

 judgement for Reed for thirty aoUars and costs. 

 The railroad company thereujwn brought the 

 case to the Supreme Court, jiii .T>'.^<if." i r-;.: 



There was but one witness ezamiUed who 

 testified that he was plowing on the 5th of May, 

 1855, when he heard a freight train coming on 

 the Illinois Central Railroad ; stopped to h)ok 

 at it, and saw a lot of cattle on the track, all of 

 which left the track, except one steer, who ran 

 before the train about twelve paces, when+he 

 locomotive caught him and shoved him along 

 the track and then upon one side, both of his 

 hinder legs were broken, and his f<»*eleg8 se- 

 verely wounded. The steer died of his wounds. 



That the value of the steer was thirty dollars. 



The counsel for defendant maintained that 

 the proper form of action was not trespass, tfi 

 et armis, but trespass on the case for the negli- 

 gence of the servants of the Company. This 

 was not the case in this cause. No negligence 

 had been complained of on the part of the com- 

 pany or its attaches. If those put in charge of 

 the train, in conducting it, behaved carelessly, 

 and thereby caused the injury, such careless- 

 ness is the direct and immediate cause of the 

 injury, for which they might be njade liable in 

 trespass, but the employer whose act was at the 

 most, but the remote cause of the injury, could 

 only be made liable in an action on the case. 



But waiving this question as to the form of 

 the action, the evidence does not show such a 

 case of negligence in those having the charge 

 of the train, so as to render the company liame 

 for the injury sustained. The rule laid down 

 by tiiis court in the case of The Chicago and 

 Mississippi Railroad Cdmpany vs. Patchin, 16 

 111 198, must control this case. It had been 

 previously settied, that the company was not 

 bound to fence the road against, or to prevent 

 the intrusion of stock upon it. In this case it 

 was settled that animals wandering upon the 

 tirack of an uninclosed railroad were strictly 

 trespassers, and that the company was not lia- 

 ble for their loss while on the track, unless its 

 employe^were guilty of willful or wanton inju- 

 ry, or of ^oss negUgence, evincing reckless or 

 willful misconduct. 



The only point which the evidence settles is 

 the killing of the steer. There is nothing tes- 

 tified to; showing the least want of care, or that, 

 by the greatest possible exertions, the accident 

 Could have been prevented, much less, is there 

 that gross and culpable negligence or wantcn 

 recklessness shown, which the law requires, in 

 order to render the company liable for the loss 

 of the steer. The burden of proof is on the 

 plaintiff, and it is for him to show by facts and 

 circumstances, and by those acquainted with 

 the management of trains, who couJd speak 

 understandiUgly on the subject, that it was 

 practicable and easy to have avoided the colli- 

 sion, and that in not doing so, those in charge 

 of the train, were guilty of that measure of 

 carelessness, or wil&tl misconduct, which the 

 law requires, to establish the liability of the 

 defendant below. The defendant's train was 

 rightfully on the track, and could go no where 

 else. The plaintiff's steer was there wrongful- 

 ly. He was was wrongfully allowed to be in 

 the most dangerous place which could be found, 

 and where there was every reason to suppose he 

 would be killed. He being there, was not only 

 dangerous to the steer, but to the property of 

 the company and the lives of those upon the 

 train, and courts and juries should not strain 

 the law to encourage the owners of stock to 

 allow it to run into danger, which exposes not 

 only their own property, but the lives and pro- 

 perty of others. '- • ■- -. 1 ^ . . ■• '^ /,'. 



The judgment must' 15« revetftiid, JBnd the 

 cause and the cause ronanded. Judgment re- 

 versed, ---v^j : tj.--! Ytsyr :A .*.i- ' iij ■■■^iiu"-:-:!'^ 



