Blue v. Briggs
| Decision Date | 27 February 1895 |
| Docket Number | 1,354 |
| Citation | 39 N.E. 885,12 Ind.App. 105 |
| Parties | BLUE ET AL. v. BRIGGS |
| Court | Indiana Appellate Court |
From the Greene Circuit Court.
Judgment affirmed.
J. T Hays, for appellants.
W. S Maple and J. S. Bays, for appellee.
The appellee sued for damages sustained by driving into a barbed wire fence erected by appellants across a way over which appellee was traveling in the night time.
The first paragraph counts upon the appellants' wrong as consisting in thus obstructing a public highway. The appellant railroad company, while authorized by law to construct its road across public highways, was not, by reason of its duty to securely fence its road, justified in building a fence across the highway.
The second paragraph sets up facts showing that appellants negligently built and left unguarded a barbed wire fence across a highway which had been for many years much traveled by the public. Under the facts alleged we think it clear that the appellants were negligent in building and leaving unguarded such a fence in such a place. The pleading is good under the cases of Carskaddon v. Mills, 5 Ind.App. 22, 31 N.E. 559, and Morrow v Sweeney, 10 Ind.App. 626, 38 N.E. 187.
When the act averred to have been done is of such a character as that, under the circumstances alleged, it was necessarily negligent, it will be so regarded by the court, even if it be not designated as negligently done, although it is generally the safer practice to make this allegation directly.
The complaint thus charges, in the first paragraph, an unlawful act, viz.: the obstruction of the public highway, and in the second paragraph the doing in an improper manner of that which appellants had a lawful right to do in a proper manner. Both paragraphs were good.
To this complaint appellants answered, first, by a general denial; secondly, specially. In the latter paragraph, facts are set forth tending to show that there was no public highway; that the fence was lawfully erected at the point where it was placed, and that one of the appellants had nothing whatever to do with its construction. All the facts therein averred were admissible under the general denial. There was, consequently, no error in sustaining the demurrer to it. Kelley v. Kelley, 8 Ind.App. 606.
Moreover, the answer, although pleaded to the entire complaint, in no way meets the averments of negligent conduct which form the gist of the second paragraph.
The jury returned a verdict in favor of appellee. The correctness of the court's action in overruling the motion for new trial is questioned.
The evidence quite fully sustains the verdict.
From it we learn that this road had been traveled as a public highway for twenty-five or thirty years; that appellant Blue was the general manager of the appellant railway company; that without any legal proceedings to so do, Blue undertook to straighten the highway in controversy, and, in doing so, changed its course at the point where the fence was built across the old way; that he ordered the barbed wire fence constructed across this old road by the regular employes of appellant railway company, by whom they were paid for the work. There was nothing but the wire across the traveled way. The fence was not visible at night and...
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