The evidence does not show negligence by the defendant’s servants in running and operating its train, whereby the plaintiff’s horses were killed. From the evidence, they seem to have done all that could have been done, after the peril of the horses was discovered, to have reasonably avoided injuring them.
The horses got upon the track through an opening made in the fence by persons in the employ of the Springfield and Northwestern Railroad Company. This occurred late in the evening of Saturday, the 22d of November, 1874, and the horses were killed by a freight train passing north, about 12 o’clock the same night. There is no evidence that any employee of the defendant was aware of the breach in the fence; and we do not think the circumstances proved are such as authorized them to anticipate the breach being made at that time. On the principle announced in Illinois Central Railroad Co. v. Swearingen, 47 Ill. 206, there was no right to recover.
The covenant in the deed does not add to the defendant’s liability under the statute, and does not affect the principle.
The judgment is reversed and the cause remanded.
Judgment reversed.