Ohio & Mississippi Railroad v. Brown
Illinois Supreme Court
The defendant in error, Brown, filed his declaration in the clerk’s office of the Circuit Court of Marion county, against the plaintiffs in error, containing one count in usual form, averring that defendants, on the 21st June, 1857, were the proprietors of the Ohio and Mississippi Railroad, which had been open for use from the 14th February, 1855, whereby defendants below were liable for injuries to stock, in case they failed to erect fences, etc., except at places excepted…
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The defendant in error, Brown, filed his declaration in the clerk’s office of the Circuit Court of Marion county, against the plaintiffs in error, containing one count in usual form, averring that defendants, on the 21st June, 1857, were the proprietors of the Ohio and Mississippi Railroad, which had been open for use from the 14th February, 1855, whereby defendants below were liable for injuries to stock, in case they failed to erect fences, etc., except at places excepted in the statutes. That defendants below, knowing the same, neglected and refused to erect such fences, whereby three…
1Opinion of the CourtWalker, J.
It is an elementary principle, of universal application, that the allegata and probata must agree. Any material variance between the allegation and proof, fails to sustain the pleadings, although mere surplusage is disregarded. The defendant in error in this case relied upon the liability imposed by statute for a failure to fence the track of the road, by plaintiff in error. This duty is imposed alone by statute, it not being a common law obligation. When cattle are killed by the company, at a point on the road where they are required by statute to fence, but have failed to do so, the company…
2Cited by2 opinions
- McCook v. BryanSupreme Court of Oklahoma · 1896
- Ohio & Mississippi Railroad v. TaylorIllinois Supreme Court · 1862