Cincinnati, H.&I.R. Co. v. Jones

• Decision Date: 23 May 1887
• Citation: 12 N.E. 113,111 Ind. 259
• Court: Indiana Supreme Court
• Parties: Cincinnati, H. & I. R. Co. v. Jones.

111 Ind. 259

12 N.E. 113

Cincinnati, H. & I. R. Co.

v.Jones.¹

Supreme Court of Indiana.

May 23, 1887.

Appeal from circuit court, Rush county.

R. D. Marshall and John W. Study, for appellant. B. L. Smith, W. J. Henley, Claude Cambern, and T. J. Newkirk, for appellee.

Mitchell, J.

This was a suit to recover the value of a mare alleged to have been struck and killed by the appellant's engine and train of cars on the eighteenth day of October, 1884. The complaint charged that the railroad was not securely fenced at the place where the animal went upon the track. The issue was made by a general denial. There was a trial, verdict, and judgment for $3,500. It is urged on behalf of the appellant that the verdict is not sustained by the evidence. The railroad company rested its defense mainly upon the proposition that it was under no legal obligation to maintain a fence at the place where the animal entered upon its track.

It appears from the evidence that the appellant's line passes east and west through the city of Rushville. A short distance east of the east boundary of the city limits the said road intersects a highway known as the “Michigan Road,” which runs north and south. At the point of intersection, and for some distance either way, the highway runs parallel with and along the west bank of a race or water-course, over which the railway track is laid upon a wooden bridge, some 60 feet in length. The west end of the bridge is on a level with the highway, and within the highway limits, not more than seven feet distant from the traveled track. The width of the highway, at the point of intersection, counting from the west end of the bridge, is but 27 feet. The railway bridge was covered with plank or cross-ties, three inches thick, and about nine inches wide, laid from two to two and a half inches apart. Guard-rails designed to afford protection to engines and cars in case of derailment were placed at suitable distances from the rails of the main track, and the evidence tended to show that the security of trains, in case of derailment on the bridge, rendered it necessary to place the cross-ties close together. As a means of deterring animals from going upon the bridge, two cross-ties had been omitted or taken out, one about three and the other about five feet from the west end. Whether any more effective means for that purpose could have been employed with a due regard for the safety of trains and employes does not seem to have been the subject of any testimony one way or the other. The railroad company relies upon what it claims to have established as the fact, that the west end of the bridge extends necessarily into the highway limits, and that the animal, when struck, although upon the west end of the bridge, was nevertheless within the bounds of the highway. The company claims, further, that a cattle-guard could not have been constructed to the westward of the bridge without incumbering the highway, and rendering travel thereon dangerous. It appears that the plaintiff's mare escaped from a pasture field, and, passing along the highway, entered upon the west end of the bridge, where she was struck by an engine about 5 o'clock in the morning. There was evidence from which the jury may have believed that the animal had passed over the openings in the west end of the bridge, and that she had turned westward, and was trying to escape to the highway, when struck by the engine. Other evidence tended to show that she had fallen into the openings, and was struggling to extricate herself when the engine came upon her. Since there seems to have been no dispute but that the west end of the bridge was substantially in the highway, it is made reasonably clear that the railroad company could not lawfully have placed a cattle-pit to the westward of the bridge. The highway ran parallel with and along the margin of the road. A fence could have served no useful purpose; and as there was only seven feet between the west end of the bridge, which was in the highway, and the traveled track, to have placed a cattle-pit there would have been manifestly an unlawful and dangerous obstruction in the highway.

It is abundantly settled that a railroad company is not required to fence its track, nor to maintain cattle-pits, at points where to do so would interfere with the safety of its employes in operating trains upon the road, or where fences or cattle-pits would interfere with its rights in the transaction of business with the public, or where the rights of the public in traveling or doing business with the company would be interfered with. When animals enter upon railroad tracks at such places, and are killed within limits that cannot and are not required to be fenced, the company is not liable under the statute. Indiana, etc., Ry. Co. v. Quick, 109 Ind. 295, 9 N. E. Rep. 785, 925; Indiana, etc., R. Co. v. Sawyer, 109 Ind. 342, 10 N. E. Rep. 105; Fort Wayne, etc., R. Co. v. Herbold, 99 Ind. 91.

The company did not, however, make its defense complete by showing that it could not maintain a fence or cattle-pit in the highway. The location of its bridge was such that it was necessary that it should have been so constructed as to prevent animals from...