Baltimore & Ohio Southwestern Railroad Co. v. Dickey
| Decision Date | 08 April 1909 |
| Docket Number | 6,652 |
| Citation | 87 N.E. 1047,43 Ind.App. 509 |
| Court | Indiana Appellate Court |
| Parties | BALTIMORE & OHIO SOUTHWESTERN RAILROAD COMPANY v. DICKEY |
From Martin Circuit Court; Hileary Q. Houghton, Judge.
Action by Orpheus M. Dickey against the Baltimore & Ohio Southwestern Railroad Company. From a judgment for plaintiff defendant appeals.
Affirmed.
Gardiner Tharp & Gardiner, F. Gwin, J. B. Marshall and Edward Barton, for appellant.
Frank E. Gilkison, for appellee.
The complaint is in one paragraph. It avers that the defendant is a corporation doing a general railroad business in the State of Indiana, and for the purpose has a line of railroad extending from Cincinnati, Ohio, to St. Louis, Missouri, which line of railroad runs across Halbert township, Martin county, Indiana. Plaintiff avers that he lives along the line of said railroad in said township, and has possession of a farm that lies along and adjoining the right of way of said railroad company; that on December 9, 1906, a horse belonging to plaintiff escaped from the place where it was kept on his said farm, wandered away therefrom, and got upon the right of way of the defendant company in said township, county and State, at a point where said defendant negligently failed to maintain a fence as provided by law; that said horse then went upon the track of said defendant, and was run upon, struck and killed by one of the engines of the defendant company running upon said railroad.
A demurrer to the complaint for want of facts was overruled. The cause was put at issue, tried before a jury, and a verdict rendered for $ 100.
The first error assigned and discussed is the action of the court in overruling the demurrer to the complaint. The objection made to the complaint is that it contains no allegation that the engine that struck and killed plaintiff's horse was being run or managed by defendant or any of its servants while engaged in its service.
This court in Cleveland, etc., R. Co. v. Van Natta (1909), 44 Ind.App. , in which the sufficiency of the complaint was called in question by demurrer for want of facts on substantially the same ground, held the complaint sufficient. Upon the authority of that case the claim must be disallowed.
The only other error assigned is overruling appellant's motion for a new trial. The first reason for a new trial is that the verdict is not supported by sufficient evidence.
Appellant insists that to fence its track at the point in question with the necessary cattle-guards would so increase the danger to the employes as to render that of paramount importance; that to do so would render it liable to its...
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