Before MAJOR, FINNEGAN and HASTINGS, Circuit Judges.
Paul F. Beiter, a resident of the State of Wisconsin, instituted this action against Charles Erb and Louis Frankel, residents of the State of Illinois, for the recovery of damages to person and property sustained as a result of their alleged negligence. Jurisdiction rests upon diversity of citizenship, with the requisite jurisdictional amount.
The complaint, so far as here material, alleges:
"That on the 19th day of August, 1954, the Defendants were the owners of cattle which were maintained and kept on a farm owned by the Defendant Louis Frankel, abutting Highway 20 in McHenry County, Illinois.
"That on said day at about 1:00 o'clock in the moring, the Plaintiff, in the exercise of due care for the safety of his own person and property and for that of others, was driving his automobile in a westerly direction on said highway, and the Defendants had allowed a cow to be at large on the highway in violation of the Statute hereinafter set forth. That as the proximate consequence of the negligence of the Defendants in violation of said Statute in allowing said cow to be at large and upon the highway, the said cow and the automobile operated by the Plaintiff collided and Plaintiff was thrown down and injured * * *."
(Then follows a description of the injuries sustained by plaintiff and of the damages to the automobile which he was driving.)
The statute referred to in the complaint is Chapter 8, Sec. I, Ill.Rev.Stats.1957, and is entitled, "Domestic Animals Running at Large." It provides:
"Hereafter, it shall be unlawful for any animal of the species of horse, ass, mule, cattle, sheep, goat, swine or geese, to run at large in the State of Illinois: Provided, that no owner or keeper of such animals shall be liable for damages in any civil suit for injury to the person or property of another caused by the running at large thereof, without the knowledge of such owner or keeper, when such owner or keeper can establish that he used reasonable care in restraining such animals from so running at large."
Defendants' answer contained a general denial of the allegations of the complaint, an allegation of contributory negligence on the part of plaintiff and an affirmative defense of no negligence on their part.
A trial was had by jury which returned a verdict in favor of defendants. From the judgment entered thereon plaintiff appeals.
Plaintiff in his brief under the heading, "Contrested Issues," enumerates a number of propositions which are not contested issues but mere statements of fact or principles of law about which there can be little, if any, disagreement. In the argument portion of his brief, however, he has simplified and apparently isolated the sole issue relied upon in this Court. Plaintiff, after referring to the unfavorable jury verdict, states:
"The Appellant then made a motion for a new trial based on the contention that contributory negligence, short of contributory negligence as a matter of law, is not a defense to an action brought under Chapter 8, Section I of the Illinois Statutes and that the ...