The Indiana, Bloomington and Western Railway Company v. Overton
Citation | 20 N.E. 147,117 Ind. 253 |
Decision Date | 02 February 1889 |
Docket Number | 13,427 |
Parties | The Indiana, Bloomington and Western Railway Company v. Overton |
Court | Supreme Court of Indiana |
Petition for a Rehearing Overruled March 30, 1889.
From the Clinton Circuit Court.
The judgment is reversed, with costs, with directions to sustain the appellant's motion for a new trial.
C. W Fairbanks and W. R. Moore, for appellant.
M. E Clodfelter, T. E. Ballard, -- Adams and H. C. Sheridan, for appellee.
Overton sued the railroad company to recover damages for the alleged intentional killing of his cow at a highway crossing.
He charged in his complaint "that the defendant, for the purpose and with the intention of running its train of cars over and upon said cow, wilfully, recklessly and carelessly" ran its train at a great and unusual rate of speed over and through the streets of the city of Crawfordsville, in violation of an ordinance of the city, and over and upon the plaintiff's cow, and thereby wantonly and wilfully killed the animal.
While there are some ambiguous averments in the complaint, it nevertheless charges that the servants of the railroad company recklessly committed some acts, and wilfully omitted others, with the purpose and intention of running the train of cars over and upon the plaintiff's cow. It is contended on the plaintiff's behalf here that the facts averred show that the animal was purposely and intentionally run upon, and that the facts stated make the complaint good upon that theory. We are constrained to adopt this view. Gregory v. Cleveland, etc., R. R. Co., 112 Ind. 385, 14 N.E. 228, and cases cited.
The demurrer to the complaint was therefore properly overruled. The evidence fails completely, however, to sustain the complaint.
There is an entire absence of evidence tending to show either an actual or constructive intent on the part of any person connected with the management of the train to run upon or over the plaintiff's cow.
The engineer in charge of the engine testified that he did not see the cow upon the track until he was within about one hundred feet of the crossing, and that he had no intention whatever of running upon the animal. There is not a syllable of testimony, nor are there any circumstances, tending to contradict the engineer's evidence.
It does not appear that the train was being run at a dangerous or unusual rate of speed, nor was it shown that the crossing...
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