
    The Galena and Chicago Union Railroad Company, Appellant, v. William Sumner, Appellee.
    APPEAR EROM WINNEBAGO.
    ' The owner of animals, killed or injured by a railroad, in order to recover against the company, must, by proper averments in his declaration, show not only that the company were required to fence their track and had failed to do so, but must negative the various exceptions in the enacting clause of the statute, and aver that the animals were not injured at a point on the road within these exceptions, and also that the road had been opened for use six months before the occurrence of the accident.
    
      This was an action on the case, tried in the Circuit Court of Winnebago county, before Sheldon, Judge, and a jury, and verdict and judgment against appellant for $255. The defects in the declaration for which the case is reversed, are stated in the opinion.
    J. L. Loop, for Appellant.
    A. S. Miller, for Appellee.
   Breese, J.

This action is brought under the act of the General Assembly, entitled “ An act to regulate the duties and liabilities of railroad companies.” (Scates’ Comp. 953.)

The declaration contains two counts. The first sufficiently avers all the facts necessary to create the liability of the defendants, except the want of the necessary averment that the road had been opened for use six months before the accident occurred, but the second count is still more defective. In the Case of the Ohio and Mississippi Railroad Company v. Brown, 23 Ill. R. 94, it is held that the owner of animals injured or killed, in order to recover against the company, must by proper averments in his declaration, show not only that the company were required to fence their track and had failed to do so, but must negative the various exceptions in the enacting clause of the act, and aver that the animals were not killed or injured at a point on the road within these exceptions. Chicago, Burlington and Quincy R. R. Co. v. Carter, 20 Ill. R. 390. Nor is there any averment that the road had been opened for use for six months before the occurrence of the accident. These objections can be taken advantage of on error, for the party complaining is bound to show a good record. The judgment is reversed and the cause remanded, with leave to amend the declaration.

Judgment reversed.  