While the company guilty of the negligence-in this case, the Pennsylvania Company-will be liable for the damages resulting therefrom, the owner of the railroad, to whom is granted the control and management of it, will also be liable. The public may look for indemnity for injury resulting from the wrongful or unlawful operation of the road to that corporation to which they have granted the franchise, and thus delegated a portion of the public service; and for this purpose, the company whom it permits to use its tracks, and its servants and employes, will be regarded as the servants and agents of the owner's company. Authorities supra; Singleton v. Railroad Co., 70 Ga. 464; Nelson v. Railroad Co., 26 Vt. 717. It follows, therefore, that no other negligence than that of the company or corporation permitted or authorized by the owner company to use its railway need be alleged or proved to fix the liability of the owner. ble in respect The law is conceded to be as stated as respects railway corporations in this state, but it is said that the rule can have no application to the stock yards company. It is insisted that its tracks are upon its private grounds, Stock-yards and for its own convenience, and that the same company liarule must be applied to its tracks as would apply of franchise to the track of a private individual extending into to operate his lumber-yards or the like. Without pausing to railroad. discuss what would be the liability in the case supposed, it will be found by reference to the charter of the stock-yards company that its right to own, build, maintain, and operate its railway is by virtue of a franchise granted by the state. By its charter (2 Priv. Laws 1865, p. 678,) which, it is declared by the legislature, "shall be deemed a public act," appellant is created a body politic and corporate, by the name and style of the "Union Stock-Yards & Transit Company in Chicago," in perpetuity. By the second section, it is given power to locate, construct, and maintain upon land it may acquire, in convenient proximity to the southern limits of the city of Chicago, all necessary" yards, inclosures, buildings, structures, and railway lines, tracks, switches, and turnouts," etc. By the third section, it is authorized to construct a railway, with one or more tracks from its yards, so as to connect, outside of the city of Chicago, its yards with the tracks of all railroad lines entering Chicago from the south and west within prescribed limits. For this purpose it may acquire land for right of way by purchase and condemnation (section 4) under the general laws of the state. It is granted power to make connections with all of said railroads, with suitable side tracks, switches, and connections, so as to enable "all trains running upon said railroads "so entering said * * city, to easily and conveniently approach its yards, and to change, alter, and relocate its tracks, and to "fully finish and maintain said railroad or roads," and to transport, and to allow to be transported, thereon, by steam, or other power, freight, and property of every kind, and to fix, establish, take, and receive such rates of toll for all freight transported over its lines as its directors may from time to time establish; provided "all fees and charges for freight * * * shall be subject to any general law * * in reference * * to railroads." It may construct and maintain its lines of railway across public streets, highways, and water-courses. The eleventh section is a limitation upon its power to maintain or operate a railroad for the conveyance of passengers or freight, "in the city of Chicago." It is apparent this appellent, under its franchise, built, owned, and operated its railway, clothed with ample power to control its management and operation, whether by itself or other corporations; and every reason of public policy applicable to other railroad corporations applies with equal, if not greater, force to this appellant. It may allow other corporations to use its railway, but it has exclusive control of the manner of its operation, and must be held responsible for its proper management. It may not absolve itself from responsibility to perform its duty by permitting others to discharge its corporate functions. But it is said that the motion in arrest of judgment should have been sustained because it is not alleged in either count of the declaration that the train of the PennsylvaSufficiency of nia Company in question was running upon the declaration. stock-yards company's tracks by contract with the latter company, and that for aught that is alleged the former company may have been mere trespassers in so running its train. The allegation is that this appellant was a corporation, organized, and acting under the laws of this state, "owning and using railroad tracks upon which the defendant the Pennsylvania Company and other railroads ran their cars and locomotives," etc. And, again, it is averred that the Pennsyl vania Company had control and occupation of said tracks. Before verdict the intendments are against the pleader, and under demurrer to a declaration, nothing will suffice by way of inference or implication; but after verdict the rule, with certain limitations, is entirely different. The rule in respect of the latter case is stated in 2 Tidd, Pr. 919, to be: At common law, when anything is omitted in the declaration, though it be matter of substance, if it be such as that, without proving it at the trial, the plaintiff could not have had a verdict, and there be a verdict for the plaintiff, such omission shall not arrest the judgment." Mr. Chitty on Pleading (volume I 1, p. 673) states the rule as follows: "The second mode by which defects in pleading may be, in some cases, aided, is by intendment after verdict. The doctrine upon this subject is founded on the common law, and is independent of any statutory enactments. The general principle upon which it depends, appears to be that, where there is any defect, imperfection, or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet, if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection, or omission is cured by the verdict." In Stephen on Pleading, it is said, (page 148) quoting the court of king's bench in Jackson v. Pesked, 1 Maule & S. 234: "Where a matter is so essentially necessary to be proved that, had it not been given in evidence the jury could not have given such a verdict, there the want of stating that matter in express terms in the declaration, provided it contains terms sufficiently general to comprehend it in fair and reasonable intendment, will be cured by a verdict." If the plaintiff omits to state a good title or cause of action, or to state facts from which a good cause of action may be implied, there is no room for indulging in intendments; but on motion in arrest of judgment the court will intend that every material fact alleged in the declaration, or fairly and reasonably inferable from what is alleged was proved at the trial; and if, from the issue, the fact omitted, and fairly inferable from the facts stated in the declaration, may fairly be presumed to have been proved, the judgment will not be arrested. Authorities supra; Addington v. Allen, 11 Wend. (N. Y.), 375; Stanley v. Whipple, 2 McLean (U. S.), 35; Dobson v. Campbell, 1 Sum. (U. S.), 319. It is clear that whether the Pennsylvania Company was running its train over this appellant's railway under contract with it, or by its permission and consent, was a matter material to be proved to fix its liability. As before stated, it is alleged that this appellant was a corporation owning and using certain railroad tracks upon which the other defendant and other railroads ran their cars and locomotives, and that said. Pennsylvania Company had control and occupation of said tracks. The allegation in this respect is not confined to the particular train from which the injury resulted; but the allegation is general, that this and other railroad companies, "ran their cars and locomotives" over these railway tracks owned and used by this appellant. It seems to us that these allegations are "sufficiently general to comprehend" therein, by fair and reasonable intendment, that the Pennsylvania Company was so in control lawfully; that is, by consent of the owner corporation. It may fairly and reasonably be implied that, by some contract or arrangement between the two companies, the other defendant had the right to run its cars and locomotives over these tracks. No other reasonable inference could arise; and, in our judgment, there is sufficient appearing, by fair and reasonable implication from what is alleged, to render the declaration good after verdict. As before said, this matter was directly in issue, and was so far material that no verdict against this appellant could lawfully have been rendered without proof of the fact; and looking into the bill of exceptions, we find, while there was no express proof of a contract, there is ample evidence from which the jury would be justified in finding that the Pennsylvania Company was running its trains, as it had been for 18 months prior to the injury complained of, by and with the consent of the owner corporation. The motions for new trials and in arrest of judgment were properly overruled, and the judgment of the appellate court will be affirmed. MOBILE & OHIO R. CO. υ. DAVIS. (Illinois Supreme Court, October 31, 1889.) * * Crossings-Signals-Street of Incorporated Town-"Highway."—Under the Illinois Act of March 5, 1874, (Ill. Rev. St. chap. 131, § 1,) which declares that "the word highway,' 'road' or 'street' may include any road laid out by authority * of any town or county," the word "highway" as used in the statute (Ill. Rev. St. 1889, chap. 114, § 68) requiring signals to be given before crossing " any public highway " includes a street in an incorporated town. New Trial-Misconduct of Juror-Drinking with Attorney.-A new trial will be granted where it appears that a juror, after the introduction of the evidence but before the closing arguments, drank in a saloon with the attorney for one of the parties, who also acted for the adverse party in a suit to which the juror's wife was a party and which had that day been compromised. APPEAL from Appellate Court, Fourth District. Wm. Winklemann, for appellee. MAGRUDER, J.-This is an action on the case, brought in Case stated. the circuit court of Monroe county by the appellee against the appellant company to recover damages for personal injuries, and for injuries to personal prop erty, as hereafter stated. The trial below resulted in verdict and judgment in favor of the plaintiff, and the appellate court has affirmed the judgment of the circuit court. 24 Ill. App. 250. The case is brought here by appeal from the appellate court. Declaration. The declaration avers, in substance, that on June 15, 1886, the plaintiff was riding in his wagon, drawn by a pair of mules, along the public highway from the town of Columbia, in Monroe county, to the town of Centreville, in St. Clair county, and, while crossing the railway. track of the defendant at the point where such track crosses the highway in the incorporated town of Columbia, his team was struck by a passing train; that plaintiff was thrown from the wagon, and received severe bodily injury; that the wagon was so broken and injured as to be useless; that one of the mules was killed, and the other had one of his legs broken, etc.; that plaintiff was using all reasonable care and diligence to avoid an accident; that the injuries resulted from the negligence and carelessness of the servants of the defendant in control of the locomotive and train, in not ringing a bell or blowing a whistle at a distance of at least 80 rods from the crossing of the highway, and in not continuing such ringing or whistling until the highway was reached. Failure to give signal. I. It is claimed that the charge of a failure to ring a bell or blow a whistle is not sustained by the evidence, and that the plaintiff was guilty of a want of ordinary care. These are questions of fact, and we cannot consider them. Signals at street crossings-Construction of statute. 2. The trial court was requested by the defendant to instruct the jury that section 6 of an “ Áct in relation to fencing and operating railroads," approved March 31, 1874, (Starr & C. St. chap. 114, 68, p. 1927,) does not apply to the crossing of railroads with streets within the corporate limits of a city or town; "and that if it should appear from the evidence that the Centerville road is a street in the town of Columbia, and that the crossing in question is within its corporate limits, then this statute has no application to the case at bar." The court refused to give the instruction, and such refusal is assigned as error. Section 6 is as follows: "Every railroad corporation shall cause a bell of at least thirty pounds' weight and a steam-whistle [to be] placed and kept on each locomotive engine, and shall cause the same to be rung or whistled, by the engineer or fireman, at the distance of at least |