Opinion of the Court. books and the treasurer's and collector's accounts, and he should furnish the information to the board, and then it is their duty to examine it, by committee or otherwise, and see that it is correct; and a treasurer failing to do so when acting as collector, is in default of duty to the same extent that he is when acting as treasurer, and when he fails or refuses to report at the regular session of the board of supervisors, he has omitted a duty imposed by law that places him in a position that he must, when thereafter legally required, show what disposition he has made of public funds that have come to his hands. Thenceforward the burthen of proof is upon him to discharge himself from the liability to account for and pay over funds shown to have come into his hands. In this case it appears that Coons did not offer to report until in 1868, and, from some unknown cause, and strange as it may seem, the board of supervisors would not receive it or permit it to be read. Why they should refuse to receive the report and settle with the collector, in violation of a requirement of the statute, is incomprehensible to us. We can imagine no well founded reason for such action, when we see it accompanied with positive refusals of the board to settle with Coons. It has much the appearance of an effort to permit Coons to use and appropriate this fund to his own use, or to shield him in defaults he had already committed. Nor does it imply that they were zealous in protecting the people in their pecuniary rights. But that did not release Coons from the effect of his neglect to report during the year 1865, for the tax collected before the annual session of the board of supervisors, or at the first session in 1866, for moneys thus collected and bounty orders received after the time he should have reported. But failing to report in 1865, he should have made a full report in 1866. But failing in this duty, it devolved on him to show what he had done with the money and orders which he is shown to have received. If he did his duty, he collected the taxes within the time required by law, either by voluntary payment or by sale of delinquent lands. Opinion of the Court. And inasmuch as we have no evidence of a sale having been made, we may presume collections were made during the year 1865, prior to his entering upon his second term. In this case he was shown to have received during his first term, of this tax, a sum very much larger than the judgment recovered. The receipts were in money and bounty orders uncanceled and liable to be again put into circulation. Appellants have failed to show that such orders were ever canceled, and failing to do so, the court below was fully warranted in the inference that they had been again put in circulation by Coons, and, for the same reason, that he had used the money for his own individual purposes, and the county would be thus compelled to again take up the orders, and also to levy and collect a sum of money to replace the amount thus used. It is urged that it is not shown that Coons did not pay over the money and orders thus collected to his successor, and hence appellants are not liable; that, as he became his own successor about the first day of December, 1865, we must presume he complied with that part of the condition of his bond. This might be true if there were no other condition in the bond. But it is conditioned that he will perform all of the duties required of him as collector of the bounty tax, etc., in the time and manner prescribed by law. It was manifestly a breach of duty for him to convert the money and orders which he had collected to his own use; and in the fourth breach of the declaration it is averred that he so converted them. And as he had received a large sum more than the judgment, failed to report and to surrender up the orders at the September session of the board in 1865, and has failed to show what disposition has been made of them, the court below was warranted in finding that he had converted them to his own use; or, under other breaches, that, having converted them, he did not pay and deliver them to himself as his successor. If previously converted, he could not, in any sense, deliver them to his successor. Statement of the case. The entire record considered, we fail to find that there is any error for which the judgment of the court below should be reversed. In fact, the evidence would have justified a much larger judgment. Judgment affirmed. Mr. JUSTICE SCHOLFIELD took no part in the decision of this case. THE TOLEDO, WABASH AND WESTERN RAILWAY CO. v. EPHRAIM S. HAMILTON et al. 1. CARRIER-liability for stock while being transported. Where a railroad company accepts stock for transportation, it is bound to take reasonable care of it, and if, from the want of such care, loss ensues, the company will be liable to the owner. 2. SAME-duty to provide water for stock. It is as much the duty of the servants of a railway company to provide water, at suitable points on the line of its road, for the use of stock, as it is their duty to carry such stock; and where hogs, while being transported, died for the want of water, it was held that the company was liable. 3. SAME burden of proof to show exemption from liability is on the carrier. Where a carrier receives live stock for transportation, and a loss is sustained by the owner in consequence of their not being supplied with water, the burden of proof to show an exemption from liability rests upon the carrier. APPEAL from the Circuit Court of Ford county; the Hon. O. L. DAVIS, Judge, presiding. This was an action on the case, by Ephraim S. Hamilton and William Cessna against the Toledo, Wabash and Western Railway Company, to recover for loss sustained on a lot of hogs from the want of watering and properly caring for them while being transported. The material facts of the case appear in the opinion. 76 393 23a 492 76 393 84a 497 Opinion of the Court. Mr. OWEN T. REEVES, for the appellant. Messrs. WOOD & LOOMIS, for the appellees. Mr. JUSTICE SCOTT delivered the opinion of the Court: This action was brought to recover for the loss sustained on a lot of hogs, resulting, as alleged, from the negligence of the railroad company in failing to water and care for them while in its charge, being shipped from Rankin, Illinois. to Toledo, Ohio. The evidence preserved in the record makes a clear case against the company within the rule declared in the Illinois Central Railroad v. Adams, 42 Ill. 474, and we refer to that case as stating the principles of law which must control this decision. Upon the questions of fact involved, the evidence is abundant to sustain the finding of the jury. It is not contested the hogs died for the want of water while in the custody of the carrier. The excuse insisted upon is, the company had no water that could be used for that purpose on the line of its road between the shipping point and Toledo, where the hogs were to be delivered to another carrier. The burden of proof to show exemption from liability as a carrier rested upon defendant. This it has not done. The proof shows there was water at Hoopeston. The conductor of the train was apprised of the suffering condition of the hogs at that station, and requested to give them water. According to plaintiff's testimony, he declined to comply with this request, not because there was no water, but if he ran slow enough by the tank to water the hogs he would not be able to get his train up the grade beyond. It is also insisted, all the water at that point was wanted for the use of the engines running on the road. Whether there was enough water for the use of the engines and hogs does not appear from anything in the evidence, nor do we regard it as material. There was certainly water there in addition to what was required for present use, and the servants of the Syllabus. company in charge ought to have used it on the hogs. It was as much the duty of the company to provide water at suitable points on the line of its road for the use of stock, as to carry it. Before they received the stock they should have known whether they had water, and if suddenly the supply had become exhausted, they should have notified the owner. But having accepted his stock for transportation, they were bound to take reasonable care of it, and if, from the want of such care, loss ensued, the company is liable. Had the hogs been watered at Hoopeston, and been unloaded within a reasonable time at Toledo, it very clearly appears the loss would have been avoided. In both respects the company was guilty of gross negligence. No error appearing in the record, the judgment will be affirmed. Judgment affirmed. 76 395 THE TOLEDO, WABASH AND WESTERN RAILWAY Co. | 24a 330 v. MARY DURKIN, Admx. etc. 1. MASTER AND SERVANT—respondeat superior—negligence of fellow-servant. It has been uniformly held by this court, as by the English courts, that the doctrine of respondeat superior does not extend to the case of an injury received by one servant through the carelessness or negligence of another, while both are engaged in the business of the principal, if the latter has taken proper care to engage competent servants to perform the duties assigned them. 2. NEGLIGENCE—servant of railroad corporation assumes the risks incident to his employment. When a person enters into the service of a railroad company, he thereby undertakes to run all the ordinary risks incident to the employment, including his own negligence or unskillfulness and that of his fellow-servants engaged in the same line of duty, or incident thereto, provided such other servants are competent to discharge the duties assigned them. 3. SAME-ringing bell, etc. Where the omission to ring a bell or sound a whistle at a road crossing appears not to have contributed in the slightest |