$325. Failure to give the warning prescribed by law would be held, in case of injury, to constitute prima facie evidence of negligence, but not proof positive thereof. The claimant must substantiate his claim to damages by positive evidence of carelessness. 1 § 326. A statute, dating in its passage from April 9, 1872, applies to points where two or more railroads intersect. It requires all trains to come to a full stop at a distance of at least 200 feet before reaching a junction, and not more than 1,000 feet from the same, and if practicable within full view of the junction. Any engineer or other person having direction of the train, who disobeys this law, is liable to a fine of $200. Besides this, the engineer or other person responsible for the violation of the law shall be jointly and severally bound with the railroad company which he serves for any and all injuries resulting from such violation. This statute is very generally, if not universally, obeyed. 2 V. SERVANTS; FIRES. § 327. Servants and employer. 328. Servants and fellow-servants. 329. Safeguards against danger; General liabilities. 331. Fires from engine sparks. 332. Statutory provisions. 333. Common law doctrine. 8 327. The relations of a railroad servant to his employer are such as the agent in other business sustains to the principal. The former may bind the latter, 1 Galena and Chicago Union R. R. Co. v. Loomis, 13 Ill. 548; Chicago and Rock Island R. R. v. Reid, 24 Ill. 144. 2 Gross' Statutes, vol. ii, page 315. rendering him liable for contracts made or wrongs committed, even through act contrary to orders. There is no such thing as crime by proxy, but a railroad is held to such a strict responsibility for the just conduct of its business that damages to person or property are assessed against the employer, however contrary to the rules of the company the servant may have acted. $328. The company is not liable for accidents to a servant, when the injury was the fault of his own or that of a fellow-servant, provided reasonable diligence and care was taken to employ competent and trustworthy men.1 The presumption of law is in favor of the complainant. The company is liable if it select unskilled, incompetent or unreliable men, however careful it may generally be on that point.2 $329. The railroad company is bound to know the condition of its road, its machinery, etc.; also, the character and reliability of its servants. The only case in which it is practically exempt is when the servant injured was in whole or in part to blame. Even then, if he can show gross carelessness on the part of the company in any respect, he can recover. The company must furnish safe material and appliances of every kind. It may be that the defects were the fault of an agent of the company, rather than an officer thereof; but that fact would not work exemption. The rail 3 1 Illinois Central R. R. Co. v. Phillips, 49 Ill. 234; Toledo, Wabash and Western R. R. Co. v. Apperson, 49 Ill. 480; Illinois Central R. R. Co. v. Welch, 52 Ill. 183; Great Western R. R. Co. v. Geddis, 33 III. 304. 2 Honner v. Illinois Central R. R. Co. 15 Ill. 550; Ibid. v. Cox, 21 Ill. 20; Moss v. Johnson, 22 Ill. 633; Chicago and Alton R. R. Co. v. Murphy, 53 Ill. 336. 3 Toledo, Wabash and Western Ry. Co. v. Rodrigues, 47 Ill. 188. road company must defray the expense of doctoring and nursing an employe injured in its service.1 The general liabilities of the company for injury to or the death of a servant, where it is liable at all, are precisely the same as in the case of passengers. 2 § 330. It is a statutory offense for the engineer or conductor of a railroad train to be intoxicated while on duty. The statute characterizes the offense a misdemeanor. The penalty attached is slight. When, however, the crime of drunkenness when in charge of an engine or train result in a fatal accident the guilty party becomes amenable to the penalty attached to the crime of "involuntary manslaughter," which consists in "the killing of a human being without any intention so to do in the commission of an unlawful act, or a lawful act which probably might produce such a consequence in an unlawful manner.” 3 § 331. Several very extensive fires have occurred in this state which were attributed to sparks from a passing locomotive. The common law doctrine has been supplemented by a statute enacted in 1869. This statute reads: "In all actions against any person, or incorporated company, for the recovery of damages on account of any injury to any property, whether real or 1 Toledo, Wabash and Western Ry. Co. v. Rodrigues, 47 Ill. 188. 2 Gross' Statutes, vol. i, page 550. 3 Ibid. page 171. We may add in this connection that the report of the Railroad and Warehouse Commissioners for 1872 gives the total personal accidents by rail in the state for the period covered by that report is 388. Of these 19 were servants. Only eight passengers were killed, or less than half the number murdered on the Chicago and Alton railroad August 16, 1873. The number of persons in Illinois who are employed in railway service, including those dependent upon such service for support, is estimated at 50,000. personal, occasioned by fire, communicated by any locomotive engine while upon, or passing along any railroad in the state, the fact that such fire was so communicated shall be taken as full prima facie evidence to charge with negligence the corporation, or person or persons, who shall at the time of such injury by fire, be in the use and occupation of such railroad, either as owners, lessees, or mortgagees, and also those who shall at such time have the care and management of such engine; and it shall not, in any case, be con sidered as negligence on the part of the owner or occupant of the property injured, that he has used the same in the manner, or permitted the same to be used or remain in the condition it would have been used or remained, had no railroad passed through or near the property so injured, except in cases of personal property, which shall be at the time upon the property occupied by such railroad.” § 332. Prior to this enactment the courts had held that a railroad company is responsible for injuries occasioned by loss of property from fire which is communicated from the sparks of an engine, in case there is any negligence attributable to the railway corporation or its employes. The fact that the fire caught from sparks emitted from the engine is prima facie evidence of negligence on the part of the company, and the burden of proof rests on them to rebut this presumption.1 When dry grass and weeds have accumulated beside the track and caught fire from the sparks of an engine, and this fire has been communicated to other property, causing great loss, the question 1 Great Western R. R. Co. v. Haworth, 39 Ill. 347; Chicago and Northwestern R. R. Co. v. McCahill, 56 Ill. 28. of comparative negligence of the owner of the property and of the railroad company is a question of fact properly left for the jury.1 VI. FENCES; OBSTRUCTIONS. § 334. The law mainly statutory. 335. The need of legislation. 336. Six months in which to build the fences required. 337. A good fence demanded. 338. When no fence need be built. 339. Fence contracts and contractors. 310. Penal provisions of the first statute. 341. Service of fence notice; time and effect thereof. 342. Cattle on the track without fault of the railroad company 343. Accidents from malice; three statutes. 344. Liability of the company for damage to the road; act of 1849. 345. Penalty for the crime of obstructing a train; act of 1853. 346. Penalty for conspiring to obstruct a train; act of 1861. § 334. The subject of railway fences has occasioned a large amount of litigation. For a long time the matter was left to common law regulation. At the present time statutory law is sufficiently minute to reach such cases as have arisen. These enactments date from 1855 and 1869.2 1 Illinois Central R. R. Co. v. Nunn, 51 Ill. 78. 2 For the decisions on this general subject see Illinois Central R. R. Co. v. Swearnigen, 33 Ill. 289; Chicago and Alton R. R. Co. v. Utley, 38 Ill. 410; Illinois Central R. R. Co. v. Whalen, 42 Ill. 396; Galena and Chicago Union R. R. Co. v. Appleby, 28 Ill. 284; Headen v. Rust, 39 Ill. 186; Toledo, Peoria and Warsaw Ry. Co. v. Sweeney, 41 Ill. 226; Ibid. v. Miller, 45 Ill. 42; Ohio and Mississippi R. R. Co. v. Brubaker, 47 Ill. 462; Toledo, Wabash and Western R. R. Co. v. Cole, 50 Ill. 184; St. Louis, Alton and Terre Haute R. R. Co. v. Todd, 36 Ill. 409; Illinois Central R. R. Co. v. Kanouse, 39 Ill. 272; Toledo, Peoria and Wabash Ry. Co. v. Rumbold, 40 Ill. 143. |