Chicago, Burlington & Quincy Railroad v. Magee

This was an action brought by the appellee to recover the value of a horse killed by one of defendant’s trains. The declaration has but one count, and in that the plaintiff avers a failure to build and maintain a sufficient fence, as required by the statute, and also avers that the defendant so carelessly ran, conducted and directed its train that it struck and killed the plaintiff’s horse.

On the trial the plaintiff was permitted to introduce evidence tending to prove both the grounds of liability alleged in his declaration; and the court instructed, a recovery could be had upon either…