delivered the opinion of the Court:
This was an action on the case against the Illinois Central Eailroad Company, then using and operating a portion of the Toledo, Peoria & Warsaw Eailroad, for killing, by negligence, a colt of the plaintiff, of the value of one hundred dollars. The jury returned a verdict for the value of the colt, for which the court gave judgment, having overruled a motion for a new trial.
The defendants appeal to this court, and insist the motion to set aside the verdict should have been allowed, it being contrary to the evidence.
There was some slight conflict in the testimony as to where the colt got on to the track, whether in or outside of the limits of the town of Eew Benton. The jury might have found it either way, and it would not change the aspect of the case as we view it. We place-it on the ground of great negligence in not stopping the train, then running at a slow rate of speed, so as to have given the animals, for there were two others with the colt, a chance to leave the track. The driver saw them in time to have done so, but did not do it, but rather pursued them a considerable distance, as if with the intent to kill them.
In the case of the same company against Middlesworth, decided at this term, (46th Ill. 494), negligence of this character, or even ordinary negligence, will subject the company to damages.
If by the use of ordinary care and diligence, animals on a railroad track can be saved from injury, it is the duty of the company to employ that degree of care. If they do not, they are liable. Eo other rule would afford sufficient protection to animals which are lawfully on a railroad track, as this court' has so often decided they are, if they get upon it from the range or commons.
The instructions given are in harmony with these views, and with the principles recognized in the case referred to.
The evidence sustaining the verdict, and the instructions being proper, the judgment must be affirmed.
Judgment affirmed.