delivered the opinion of the Court:
This was an action on • the case brought in the Livingston County Court by Robert Rumbold, against the Toledo, Peoria .and Warsaw Railway Company, for damages in killing a mare and two colts by the trains and locomotives moving upon that road. The accident was alleged to have occurred in consequence of the road not being fenced.
A motion was made by the company to continue the cause on account of the absence of material witnesses who were in charge of the train by which the animals were killed, and by whom they could prove that they were killed by a train operated by the Illinois Central Railroad company. The affidavit, in all respects conforms to the requirements of the statute as to diligence, etc., but we do not think the liability of the appellants would be affected or changed by the testimony desired. The gist of the action is negligence in not fencing the road as the statute requires, and if the fact was that a train of the Illinois Central road was moving on appellants’ road, unfenced as it was, the former company would be deemed the servants and agents of appellants, and this from motives of public policy and to protect ¡the property of the people and public. It was the duty of appellants to have fenced the road, and public safety demands they should be held liable for all damages resulting from the neglect to fence it. And the same policy would require that the Illinois Central should be responsible for presuming to use the road of another company fenceless and unprotected. Either company would be liable for the injury.
This question has been heretofore considered and decided by this court in the case of the Illinois Central Railroad Company v. Kanouse, 39 Ill. 272, wherein it was held, for an injury done on this same road, then called the Peoria and Oquawka Railroad company, that it was the duty of that company to fence the road, but that the Illinois Central was liable for all accidents for presuming to use the road in its unsafe and unfenced condition.
We do not see any difference in principle, between the cases. Both depend on the fact of the neglect of the appellants to fence the road.
We perceive no objections to the instructions given on behalf of appellee; and they, being proper, those asked by the appellant and refused, as they were of an opposite character to those of the appellee, were properly refused.
Perceiving no error in the record, the judgment must he affirmed.
Judgment affirmed.