Newkirk v. Milk
Newkirk v. Milk
Opinion of the Court
delivered the opinion of the Court:
In this case the fifth of defendants’ instructions given by the court is like that given in the case of Frazee v. Milk, 56 Ill. 435, which was held to be erroneous, and for the giving of which the judgment was reversed. That case is decisive of this. The first of plaintiff’s refused instructions is too general. Under it, the jury would have been warranted in finding defendant guilty, although appellant’s cattle may have contracted the disease of Fowler & Earl’s cattle, which were also on the same feeding grounds. Appellees are not liable for the acts of Fowler & Earl unless jointly done, and this instruction asserts the opposite of this doctrine. That instruction was properly refused. The second refused instruction is still more general, as it asserts that appellant could recover, if Texas cattle imparted the disease to his cattle, without limiting it to appellees’ or the cattle of any person. It only requires the jury to find that the cattle of Fowler & Earl and those of appellees passed over the feeding ground, and the cattle of appellant contracted the disease from Texas cattle, to entitle him to recover. It does not require the jury to find that the cattle of appellees communicated the disease, as it should have done. It was also properly refused.
The judgment of the court below is reversed and the cause remanded.
Judgment reversed.
Reference
- Full Case Name
- Cyrus Newkirk v. Lemuel Milk
- Status
- Published
- Syllabus
- 1. Texas azto Cherokee cattle—different owners—which liable for infection. Where two separate lots of Texas or Cherokee cattle, owned and in the possession of separate owners in this State contrary to the statute of 1867, were each on the same feeding ground or section where the cattle of the plaintiff were being herded, and plaintiff’s cattle became infected, from which they died, the court, in a suit against the owners of one lot of these cattle, instructed the jury, that if plaintiff’s cattle took the disease from either lot of the Texas cattle, and the testimony as to which lot communicated the disease was equally balanced, to find for defendants: Held, that the instruction was erroneous. If both lots of cattle contributed to infect plaintiff’s cattle, so that it was impossible to say that one lot was more concerned in doing so than the other, it seems that the defendants were liable. 2. In such a case it is not error to refuse an instruction for the plaintiff that if the Texas or Cherokee cattle that were on the section where plaintiff’s cattle run, infected plaintiff’s cattle with disease, of which they died, then the defendants were liable, and could not be acquitted on the ground that the damages might have accrued from the acts of the owners of the other lot of cattle. If the disease was contracted from the other lot of cattle, defendants were not liable. 3. Neither was it error to refuse an instruction that if Texas or Cherokee cattle imparted the disease to plaintiff’s cattle, without limiting it to defendants’ cattle, the jury should find defendants guilty.