Opinion of the Court.

as a consequence thereof, he fell and broke his leg, and by reason thereof it became necessary that appellee, or some other person, should take charge of him and to be kept by him until he recovered, and appellee did so care for him, he is entitled to recover; but not for any time after Mitchell became able to take care of himself.

As to the first proposition, if the drunkenness caused by appellants had ceased when the accident occurred, then appellants were not liable. If he had recovered from the effects of the liquor sold by them, and was sober at the time, or if he became sober and then got drunk on liquor procured from others, appellants are not liable. To recover, it must be shown that the intoxication was produced by appellants, which led to the accident; and inasmuch as it is not shown that Mitchell drank at appellants' saloon after ten or eleven o'clock in the forenoon, it became an important question to learn whether he would be sober, or the effects of that liquor had passed off, at five or six o'clock in the afternoon. In view, then, of these facts, it was proper to admit any evidence which would tend to establish the truth on this point; and we think, as there was no evidence showing directly whether he was drunk or sober, it was error in the court below to reject the proof offered to show how long it usually requires for an intoxicated person to get sober when no other liquor is drunk. This evidence might not prove that he was sober or that he was then drunk, but it would tend to prove the fact. It is not a legal conclusion that a drunken person will become sober in six or seven hours, but it is a fact which, if true, must be found by the jury. We can not judicially know whether the proposition is true or untrue; nor can we know that a jury can certainly determine from their own observation and experience. Hence, they should be permitted to hear evidence to aid them in determining the question. This evidence should have been admitted.

This evidence was proper for another purpose. If the jury found for plaintiff, it was important that they should know

Opinion of the Court.

when Mitchell recovered from the drunkenness caused by appellants, so as to fix a fair and reasonable amount of compensation for taking charge of him whilst he was drunk. This was a question involved in the trial, and hence the pertinency of the evidence.

This is a penal action, and, to recover, the plaintiff must clearly bring himself within the terms of the statute. Now, the section under which this recovery is sought, provides only for the penalty in cases where the liquor is sold which produces the intoxication. It has provided no penalty for causing intoxication by giving liquor to be drunk. In all penal statutes a recovery can only be had for the cases provided for in the statute. Courts are not warranted in extending them to other cases not named or embraced in the statute. In this, the construction is the same as in criminal statutes. Hence, the court erred in telling the jury that they might find for plaintiff if appellants sold or gave the liquor to Mitchell, etc.

Again, we are not satisfied with the sum found by the jury, on the evidence in the record. Appellee testified that Mitchell was not able to get around for about nine weeks after his leg was broken, and it was almost two weeks after he could walk before he could wholly help himself. From this we infer that witness intended to be understood as saying, Mitchell could walk when he could "get around," at the end of nine weeks. If he "got around" in some other manner, he would, we presume, have explained the manner. If this is so, then

in two weeks after, or at the end of eleven weeks, he was able to "wholly help himself," and at that time all necessity ceased for appellee to take care of and support him. If such was the fact, then appellee could only recover $2 a day for that time as penalty; but the jury have allowed for four months at that rate. It is true, that appellee testified that he had kept him four months after his leg was broken, but we fail to find any satisfactory evidence that it was necessary 22-76TH ILL.

Opinion of the Court.

to keep him such a length of time; but the evidence tends to show that it was not necessary after eleven weeks.

There was other evidence admitted, tending to show that it was worth four or five dollars a day to keep and take care of Mitchell, and it may be that the jury took that evidence into consideration in finding their verdict. This is a penal and statutory action, and no more than the penalty given can be recovered for each day, without reference to whether the service is worth but half or double the sum fixed by the statute. We are strongly inclined to think this evidence may have improperly influenced the jury.

For the errors indicated, the judgment of the court below must be reversed, and the cause remanded.

Judgment reversed.

JOHN P. BEDDEN

v.

JOHN M. CLARK.

TRESPASS-herding stock upon uninclosed land. Where the plaintiff 18 in possession of land, and exercising control over the same, the driving and herding of stock upon the same, when forbidden, whether it is inclosed or not, is a trespass, and the plaintiff may recover all damages sustained by it.

APPEAL from the Circuit Court of Vermilion county; the Hon. THOMAS F. TIPTON, Judge, presiding.

Messrs. MALLORY & LINDSEY, for the appellant

Mr. E. W. GRIGGS, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This action was brought in trespass, before a justice of the peace, to recover damages occasioned by appellant herding his stock on uninclosed lands of appellee without his consent.

Opinion of the Court.

At the trial the court permitted appellee to read in evidence, over objection of appellant, what is called the stock ordinance of the township of Butler, passed in 1871. Whether it was properly admitted in evidence, or whether the court gave the correct construction to it, are not, in the view we have taken, material questions in the decision of the case.

There is no controversy as to the fact appellant did herd his stock on appellee's land in 1872. He insists, however, it was done by the license and permission of appellee. This is denied, and the finding of the jury on all questions of fact submitted is in favor of appellee. The evidence shows appellee owned the land, had some improvements on it, and exercised such acts of dominion over it as authorized the jury to find he had possession. This being so, he could lawfully warn all persons to desist from herding stock upon it. The court very properly instructed the jury, as it did in the sixth instruction, that "stock can not be herded on a person's land or premises without his consent, and if they are so herded, that will constitute a trespass, and the owner of said land or premises, who has possession of the same, may recover damages from the trespasser, if any were sustained."

Were it lawful for stock to run at large in Butler township, as appellant insists it was, still that would not authorize him to herd his cattle on the land of appellee, over which he had control, when forbidden to do so. Driving stock upon the land of another, whether inclosed or not, when forbidden by the owner, would constitute a trespass, and such owner may maintain an action for the recovery of all damages sustained. No material error appearing in the record, the judgment must be affirmed.

Judgment affirmed.

NEGLIGENCE-neglect to give warning and running train at prohibited rate of speed. In an action against a railroad company to recover for the killing of plaintiff's cow by a train of cars in an incorporated town, it appeared that no bell was rung or whistle sounded, and that the train was running at a greater rate of speed than allowed by ordinance of the town. It also appeared that the plaintiff's cow was running at large, contrary to ordinance: Held, that a verdict in favor of the plaintiff was authorized, the negligence of the plaintiff in allowing his cow to run at large being slight as compared with that of the company, which was gross, and in violation of a statute law as well as of an ordinance.

APPEAL from the Circuit Court of Coles county; the Hon. OLIVER L. DAVIS, Judge, presiding.

Messrs. WILEY & PARKER, for the appellant.

Mr. J. R. CUNNINGHAM, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was originally an action brought before a justice of the peace of Coles county to recover damages of the defendant, a railroad company, for killing a cow, the property of the plaintiff. There was a verdict and judgment for the plaintiff, from which defendant appealed to the circuit court. On trial there before a jury, a verdict was rendered for the plaintiff, and his damages assessed, on which the court entered judgment, having overruled a motion for a new trial.

The accident occurred within the corporate limits of the town of Charleston, where the company were not required by law to erect a fence.

The claim of the plaintiff is based on the fact that no bell was rung or whistle sounded, and that the train was moving at a higher rate of speed than the ordinance of the town allowed.