Campbell v. Indianapolis & N.W. Traction Co.
| Decision Date | 13 November 1906 |
| Docket Number | No. 5,651.,5,651. |
| Court | Indiana Appellate Court |
| Parties | CAMPBELL v. INDIANAPOLIS & N. W. TRACTION CO. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Boone County; Sam'l R. Artman, Judge.
Action by Wilbur Campbell, by next friend, against the Indianapolis & Northwestern Traction Company. From a judgment in favor of defendant, plaintiff appeals. Reversed and remanded.Dutch & Loughrun, for appellant. Pierre Gray, for appellee.
By this action appellant sought to recover from appellee the value of a horse injured by falling into a bridge on the line of appellant's railroad. The complaint, as amended, consisted of four paragraphs. The first and third proceed upon the theory of negligence. The second under the statute. The fourth an intentional and willful injury. The demurrer for want of facts was sustained to the first and third paragraphs, and overruled as to the second and fourth. Answer in denial. Trial by jury. Peremptory instructions directing the jury to find for appellee upon the issue tendered by the second paragraph. As to the fourth, verdict for appellee. Judgment that plaintiff take nothing by his action. Appellant's motion for a new trial filed and overruled. The errors assigned call in review the rulings of the court in sustaining the separate demurrer to the first and third paragraphs of the amended complaint, and in overruling appellant's motion for a new trial.
1. From a fairly full statement of the first paragraph, it appears that, on October 14, 1904, appellee, a corporation, was the owner, and was then and for more than a year prior thereto had been engaged in operating an interurban railroad by running cars carrying passengers and express between the cities of Indianapolis and Lafayette, Ind., and through Boone county, in said state, using electricity for motive power by overhead trolley system; that it carelessly and negligently failed to construct a suitable and sufficient fence to turn horses along its right of way at a point in said county of Boone, where it could have and was its duty so to do; that at the point where appellee had so neglected to fence its right of way, and without fault of appellant, appellant's horse strayed upon appellee's said right of way and track; that about 1 1/4 miles north of the place where appellant's horse entered appellee's said right of way, and upon its tracks, appellee had constructed a bridge 30 feet in length, 10 feet wide and 10 feet from the top to the water below, over what is known as “Fenton's Ditch.” Also an approach to said bridge 200 feet long, 10 feet high and with steep banks on either side, and which was then used by appellee as a roadbed; that said bridge was unfit and dangerous for animals to pass over, as appellee's servants, then engaged in operating a north-bound car of appellee at the time of the injury complained of, well knew; that appellee by such servants, while operating said car, did then and there with said car chase said horse, and did by sounding the whistle of appellee's said car “greatly frighten plaintiff's horse, which ran north along on said right of way and railroad of defendant; that defendant's servants carelessly and negligently failed to stop said car, which they could easily have done many times during the time they began to chase plaintiff's said horse with said car until said horse was run upon said bridge of defendant,” at the time knowing said horse, on account of the fences on either side of the right of way, could not escape therefrom, and knew that when it entered upon the approach of said bridge it would not likely, on account of the steep banks, leave the same, but continued to carelessly and negligently chase and frighten said horse while on said approach to said bridge; “and that by reason of said motorman and conductor negligently carelessly falling to stop said car, which they could easily have done, and by reason of the negligent conduct in chasing said horse and greatly frightening the same, thereby caused said horse to run into said bridge, in which said horse then and there became entangled,” and thereby injured, and whereby it became worthless, without the fault of appellant, and to his damage in the sum of $125. The leading averments of this paragraph clearly indicate the pleader's intention to rest his cause of action upon the theory of negligence. The complaint avers that appellee negligently failed to construct a “sufficient and suitable fence” at a point along its road where it was its duty so to do, and that appellant's horse went upon its right of way and track at that point. These averments of fact are important when considered in connection with the other acts of negligence charged. They show a failure by appellee to perform a duty enjoined by statute (section 5479d, Burns' Ann. St. Supp. 1905; Acts 1903, p. 428, c. 227, § 1), the effect of which has a direct bearing upon the rights and liabilities of the parties to this action. By the act of 1903 it is made the duty of appellee to construct and maintain a fence “sufficient and suitable to turn and prevent cattle, horses *** or other stock from getting on such road, except at crossings of public roads,” etc. Applying this provision to the question now before us, it required appellee, by a sufficient and suitable fence, to exclude from its premises cattle, horses, or other stock. Smith v. Chicago, etc., R. R. Co., 34 Iowa, 506.
It will be observed that section 5479d, Burns' Ann. St. Supp. supra, is practically a copy of section 5323, Burns' Ann. St. 1901, Acts 1885, p. 224, c. 91, § 1, except that the former is made to apply to interurban railroads using electricity for motive power, but each deal with the same subject, “fencing roads, etc.,” and have the same provision (section 4) with reference to “injury to animals.” It is therefore argued, in effect, that the same judicial construction should be given the act of 1903 as that accorded the act of 1885. After a careful consideration of both acts we are of the opinion that the judicial interpretation applied to the one is equally applicable to the other. Board v. Com'rs, 155 Ind. 484, 496, 58 N. E. 828. Our conclusion on this point is also sustained by a familiar rule of statutory construction adopted by the courts, that legislative enactments in pari materia may be considered together in determining the legislative intention, when relating to the same subject, or to the same class of persons or things. Indianapolis Northern Trac. Co. v. Ramer (Ind. App.) 76 N. E. 808. Yet this conclusion, when applied to the facts in the paragraph of complaint now under consideration, settles but one proposition, namely, that the act of 1903, supra, imposed upon appellee the positive duty of fencing its tracks at the time of the alleged injury. Appellee contends, and it is true, that the common law in force in this state requires the owner of domestic animals to keep them upon his own premises, except as modified by section 2831, Burns' Ann. St. 1901. Klenberg v. Russell, 125 Ind. 531, 25 N. E. 596;Crum v. Conover, 14 Ind. App. 264, 40 N. E. 644, 42 N. E. 1029;Ft. Wayne, etc., R. R. Co. v. O'Keefe, 4 Ind. App. 249, 30 N. E. 916. In our opinion, it is also true, that by force of the statutes we have been considering, the common law is further modified in relation to railroads, effective to make them liable for injuries to stock negligently inflicted, where, without such statutes, they would be liable only for injuries wantonly and willfully inflicted. Elliott on Railroads, § 1180. Or in other words, the effect of our conclusion upon the statutory provision here involved, under the theory of this paragraph, is such that appellant's horse cannot be treated as unlawfully upon appellee's track, so as to relieve appellee from the exercise of that care, caution, and diligence which a prudent person would employ to avoid injuring property of others thus exposed to danger. New Orleans, etc., R. R. Co. v. Bourgeois, 66 Miss. 3, 5 South. 629, 14 Am. St. Rep. 534;Newman v. Vicksburg, etc., R. Co., 64 Miss. 115, 8 South. 172;French v. Western, etc., R. Co., 72 Hun, 469, 25 N. Y. Supp. 229; Railway Co. v. Trotter, 37 Ark. 593; Kerwhaker v. Cleveland, etc., R. Co., 3 Ohio St. 172, 62 Am....
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