delivered the opinion of the Court :
Under the pleadings there could be no liability on the part of the railway company, unless it was bound to fence its road.
The statute imposed this duty upon the company, but if, when the right of way was condemned over the land where the injury occurred, damages were assesséd against this company for fencing the road, or against a company of which the present is a legal successor, and the assessment was made a matter of record, and was formal and regular, then the land is charged with the fencing and the company is discharged. Rock Island and Alton R. R. Co. v. Lynch, 23 Ill. 645. It was, therefore, error to refuse the introduction of the record, which might have shown such discharge. The offer was, to introduce a record of the proceedings “by which damages for the right of way of said railroad” across the land of appellees, where the stock was killed, were assessed, and that the cost of fencing the road was also assessed against the company, and that appellees received the damages. The offer was not, as contended by counsel for appellees, to produce a record in which some other company was a party, but a record in which “said railroad,” the appellant corporation, was the party.
Concede, however, that the Eock Island and Alton Eailroad Company was the party to the record offered; if the present corporation, by force of the enactments of the legislature, has succeeded to all the rights and franchises of the former, the record was still admissible. Neither could the company be restricted as to the manner of its evidence. It liad the right to introduce the record first, and the statutes afterwards, even if required to offer the latter in evidence. But we understand the rule to be, that, when acts of this character are declared to be public acts, courts are bound to take notice of them without proof.
It is urged, in behalf of appellees, that this court can not perceive the relevancy of the record offered, as it is not contained in the bill of exceptions; that the judge on the circuit might have examined it and ascertained that it did not name fencing, and properly rejected it as evidence. This may be true, but the record before us discloses no such state of case. The offer was distinct and explicit to introduce a record to prove that the cost of fencing was included by the commissioners. The objection was then made that the record was not evidence for such, or for any purpose, and the court sustained the objection. No specific objection having been pointed out, we must presume that the record contained what the offer purported, and that it was rejected as incompetent evidence, under any circumstances, to prove that the cost of fencing was assessed.
, There was no error in the rejection of parol evidence to prove that the cost of fencing the road was included in the assessment of damages, in the proceeding to condemn the right of way. This was only secondary evidence, and no foundation was laid for it. The record was the best evidence.
Instructions number two, three and four, were properly refused. The second would have misled the jury. They might have inferred from it that it was incumbent upon the ])laintiffs to prove wilful negligence, or some other negligence than the fact of killing and the omission to fence.
The third informed the jury that, although the company had neglected to fence its road, yet the plaintiffs must prove that the injury resulted from such failure to fence, and must prove negligence in other respects. This required more of the plaintiffs than the law does. They need only prove the injury by the trains of the company and its neglect to fence, and thus a prima facie case of liability is made.
From the proof, the fourth instruction should not have been given. The cattle had been killed some time, were mangled and bruised, and one of them had swollen considerably. They had probably become offensive, and under such circumstances the plaintiffs should not have been required to have anything to do with the dead carcass.
The rejection, however, of the record offered, was error. If the appellant corporation had not, by proper proof or by the statutes, shown that it was entitled to the benefit of the assessment if any had been made, the court might have regulated the matter by instructions.
The judgment is reversed and the cause remanded.
Judgment reversed.