But it is said that it is possible to construe the word “bridge” as excluding the highway passing over it, inasmuch as that distinction has been recognized in the Turnpike Acts which were in force at the time when this statute was passed. I quite agree that it is possible to do so, but I do not think that in the language of § 46 any such distinction is to be discovered, and it appears to me that the Court of Queen's Bench showed good reasons why the legislature should not so have distinguished it in the present case. They pointed out that there would be an inconvenience, not only in the case of the bridge itself, but still more so in some respects in the case of the approaches, in having two different authorities to repair the structure of the bridge or the approach and the road, inasmuch as it might, especially in the case of the approaches, often be a question of some nicety to determine how much was what is here called the approach and how much was the road upon the approach, between which the learned counsel for the appellants seek to make a distinction. And then, too, it may have been considered by the legislature that as a general rule, there being an ascent and a descent contemplated on either side of the bridge, the cost of repairs would be enhanced by the fact that the road passed over the bridge instead of passing in its former course, and that would be a reason for imposing this perpetual obligation upon the railway company.

It is said by the learned counsel for the appellants that similar reasons, at all events as regards the latter point, might exist where a road was to be carried under a bridge; and I quite admit that to be the case, but in such an enactment as the present I do not feel pressed by that argument, and for this reason, that all the Railways Clauses Consolidation Act does is to lay down what one may call a general rule, which has no force or effect except in so far as that general rule is made effective by subsequent special legislation; and when you come to deal with the matter in the special act, if in the particular case the general rule is not the best rule, or one which would be fair or just, it can be excepted or modified as the legislature may think fit; and, whether as regards the road under or the road over the railway, when the special act is passed the legislature is not bound to incorporate in its exact terms the general provision relating to the one or to the other, but may make such special provision as it may deem suitable to the particular circumstances of the case. Therefore it seems to me that it is of very little force to show that a different general rule has been laid down as regards roads over a bridge from that laid down in relation to roads under a bridge, because it may well be that whilst in the one

case it was thought that in most instances it would be more just and convenient to leave the railway company to carry out the works of repair, in the other case it may not have been thought so.

My Lords, for these reasons I think that the proper construction has been put upon § 46 if one reads that section without reference to the other parts of the act, and I find nothing in the other parts of the act to justify a departure from its natural interpretation. I therefore move your Lordships that the judgment appealed from be affirmed and the appeal dismissed with costs.

LORD FITZGERALD.-My Lords, I am of the same opinion. There appears to me to be no distinction in fact between the case now before your Lordships and the case which was decided thirty-one years ago in the Court of Queen's Bench, a decision subsequently adopted and universally acted upon down to the present time. To disturb a decision of that kind we should require to be satisfied that there was some cardinal error connected with it, and I am not satisfied at all that there is any error; on the contrary, forming the best opinion that I can, I should say that the decision of the Court of Queen's Bench in 1858 was a decision according to law, according to the true interpretation of the 46th section of the act. It might have been very convenient indeed at the time. when this act was framed to have established one general rule if it was consistent with its provisions, namely, that when the railway company had given back the road into the hands of the county authorities unaltered in its character, repaired and made perfectly fit for use, the expense of repairs should afterwards rest with the latter body; but the statute does not say so, the decisions are to the contrary, and I adhere to the decision of the Court of Queen's Bench.

LORD MACNAGHTEN:-My Lords, I am of the same opinion. Order appealed from affirmed, and appeal dismissed with

costs.

Bridges over Track-Duty of Company to Construct and Repair.-See, generally, Caldwell v. Vicksburg, S. & P. R. Co. (La.), 39 Am. & Eng. R. Cas. 245, and note, 248; Rembert v. South Car. R. Co. (S. Car.), 39 Id. 252; Montclair Tp. v. New York & G. L. R. Co. (N. J.), 40 Id. 342.

PENNSYLVANIA Co. et al.

V.

ELLETT.

(Illinois Supreme Court, May 14, 1890.)

Crossing-Failure to Give Signals-Sufficiency of Evidence. Deceased paused at a crossing until a train had passed, and stepped immediately behind the last car upon the further track and was instantly struck and killed by a train which was backing at the rate of seven miles an hour. There was evidence tending to show that no warning was given of the approach of the train and that no one was on the rear of it to give warning to persons about to cross the track. Held, that the evidence was sufficient to sustain a verdict for the plaintiff.

Same-Negligence of Company Running Cars-Liability of Owner of Franchise. Where injury results from the negligence or unlawful operation of a railroad, whether by the corporation to which the franchise is granted, or by another corporation, or by individuals whom the owner authorizes or permits to use its tracks, the company owning the railway and franchise

is liable.

Same-Railroad Constructed under Charter of Stockyards Company. Under the charter of the Union Stock-Yarks & Transit Co., in Chicago, which authorizes it to erect all necessary yards, buildings, railway lines, tracks, switches and turn-outs, and to construct a railway with one or more tracks from its yards to connect outside of the city with the tracks of railroads entering Chicago, the company is subject to the same responsibilities as railroad companies in the operation of its railroad and is liable for the negligence of another corporation using it by its permission.

Same Pleading Aider by Verdict-Occupation by Owner of Tracks A complaint alleged that one of the defendants was a corporation owning and using railroad tracks upon which the other defendant ran its cars and locomotives, and also averred that the latter company had control and Occupation of the tracks. Held, that the complaint was sufficient after verdict, to show that the occupation by the latter company was with the

permission of the company owning the tracks, and that the owner tracks was liable for the negligence of the company operating it.

APPEAL from Appellate Court, First Department.

of the

Irus Coy and R. P. Hollett, for appellant Union Stock-Yards

& Transit Company.

Geo. Willard, for appellant Pennsylvania Company.

Willett & Johnson, (Consider H.Willett, of counsel,) for ap

pellee.

SHOPE, C. J.-This was an action of case, to recove

dam

ages for negligently causing the death of William R. Walkup, and resulted in a verdict against both defendants for $4,500, upon which judgment was rendered, On appeal to the ap pellate court, this judgment was affirmed. Both defendants

appeal to this court, and assign errors.

The errors assigned by the Pennsylvania Company relate solely to the sufficiency of the evidence to sustain the action. against that company. We are not at liberty to weigh the evidence, and determine the question

Facts.

of fact. However, by its fifth instruction, which was refused, and which refusal is assigned for error, this appellant asked the trial court to instruct that the evidence was insufficient to warrant a verdict against said company. Upon looking into the record, it is clear there was evidence tending to show that the killing of the deceased resulted from the negligent conduct of the servants of that company in backing its train across Exchange avenue, which the deceased was attempting to cross, and that the deceased was at the time in the exercise of ordinary care for his safety. The casualty occurred immediately in front of the entrance gates of the Union Stock-Yards. At that point the Union Stock-Yards & Transit Campany had four railroad tracks, which from 5,000 to 10,000 people passed over daily in approaching and leaving the stock yards. These tracks, running parallel north and south, are about four feet apart. Near 5 o'clock of the afternoon of February 14, 1887, the deceased, with a number of other persons, came out of the stock yards gates, intending to cross these tracks on Exchange avenue, but was stopped by a freight train going north on the third track. Pausing until this train passed, the deceased, who was in the lead, stepped immediately behind the last car on the fourth track, and was instantly struck and killed by the train of the Pennsylvania Company, backing south at the rate of about seven miles an hour. There was abundant evidence, if the jury believed it to be true, from which they might find that no warning whatever was given of the approach of the defendant's train, and that no one was on the rear of the backing train to give warning to persons about to cross the track. There was conflict in the evidence in respect of some of the matters adverted to; but, there being evidence tending to sustain the plaintiff's case, the instruc- Evidence suftion was properly refused. The fact is, therefore, tain finding to be treated as conclusively settled that the Penn- of negligence. sylvania Company was guilty of negligence caus

ficient to sus

ing the death of plaintiff's intestate, and that he was in the exercise of due and proper care. As already said, Exchange avenue is used as the ordinary and usual mode of reaching the main entrance to the Union Stock Yards, This entrance

is an arched way, with one large and two small gates, and from thence east, across these tracks, is a planked crossing "about 30 or 40 feet in width, which is used in common by persons on foot, and those on horseback, and those in car42 A. & E. R. Cas.—5

riages." The deceased was on this walk or crossing, at which a watchman was kept by the stock yards company, but who failed to give notice of this backing train. It was for the jury to say whether, in view of all the circumstances. shown, the deceased exercised ordinary care for his own safety; and, having found that he did, and that this appellant was negligent, and that finding of fact having been approved on the trial by the appellate court, it is not here open for review.

But it is insisted that, whatever the liability of the Pennsylvania Company may be, the stock yards company is not liable, and that the court erred in overruling its motion for new trial, and in arrest of judgment. It is said there is no charge in the declaration that this appellant or its servants were guilty of negligence, and, negligence being the gist of this action, no recovery could properly be had without it was alleged and proved. Without pausing to determine whether there are not sufficient allegations of negligence in the declaration to charge the stock yards company, it will be observed that it is alleged that that company owned and used the four railroad tracks before mentioned, and that the Pennsylvania Company, "having control and occupation of said railroad tracks, and also of a certain locomotive engine attached to a train of cars," negligently managed and operated the same, whereby the plaintiff's intestate was killed, etc. The charge of negligence against the Pennsylvania Company is confessedly ample.

The law has become settled in this state, by an unbroken line of decisions, that the grant of a franchise giving the right to build, own, and operate a railway carries with Liability of it the duty to so use the property and manage and grantee of control the railroad, as to do no unnecessary damfranchise. age to the person or property of others; and, where injury results from the negligence or unlawful operation of the railroad, whether by the corporation to which the franchise is granted, or by another corporation, or by individuals whom the owner authorizes or permits to use its tracks, the company owning the railway and franchise will be liable. Lesher v. Wabash Nav. Co., 14 Ill. 85; Chicago. St. P. & F. R. Co. v. McCarthy, 20 Ill. 385; Ohio & M. R. Co. v. Dunbar, Id. 623; Illinois Central R. Co. v. Finnigan, 21 Ill. 646; Illinois Central R. Co. v. Kanouse, 39 Ill. 272; Toledo, P. & W. R. Co. v. Rumbold, 40 Ill. 143; Chicago & R. I. R. Co. v. Lane, 83 Ill. 448; Pittsburg, C. & St. L. R. Co. v. Campbell, 86 Ill. 443; Wabash, S. L. & P. R. Co. v. Shacklet, 105 Ill, 364, 12 Am. & Eng. R. Cas. 166; Balsley v. St. Louis, A. & T. H. R. Co., 119 Ill. 68, 25 Am. & Eng. R. Cas. 497.