Campbell v. Indianapolis And Northwestern Traction Company
| Decision Date | 13 November 1906 |
| Docket Number | 5,651 |
| Citation | 79 N.E. 223,39 Ind.App. 66 |
| Parties | CAMPBELL, BY NEXT FRIEND, v. INDIANAPOLIS AND NORTHWESTERN TRACTION COMPANY |
| Court | Indiana Appellate Court |
From Boone Circuit Court; Samuel R. Artman, Judge.
Action by Wilber Campbell, by his next friend Robert M. Campbell against the Indianapolis and Northwestern Traction Company. From a judgment for defendant, plaintiff appeals.
Reversed.
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 (§ 5312 Burns 1901, § 4025 R. S. 1881); the fourth, an intentional and wilful 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 instruction 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, Indiana, 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 Boone county, where it could have built a fence, and should have done so; 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 one and one-quarter 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 thirty feet in length, ten feet wide and ten feet from the top to the water below, over what is known as Fenton's ditch, also an approach to said bridge two hundred feet long, ten 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 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 were chasing 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 knowing 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 carelessly and negligently to chase and frighten said horse while on said approach to said bridge, "and that by reason of said motorman and conductor's negligently and carelessly failing 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 facts 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 (§ 5479d Burns 1905, Acts 1903, p. 426, § 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, supra, 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. Co. (1872), 34 Iowa 506.
It will be observed that § 5479d, supra, is practically a copy of § 5323 Burns 1901, Acts 1885, p. 224, § 1, except that the former is made to apply to interurban railroads using electricity for motive power, but each deals with the same subject, "fencing roads," etc., and has the same provision (§ 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, supra, as that accorded the act of 1885, supra. 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, etc., v. Conner (1900), 155 Ind. 484, 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, etc., Traction Co. v. Ramer (1906), 37 Ind.App. 264, 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, at the time of the alleged injury, the act of 1903, supra, imposed upon appellee the positive duty of fencing its tracks.
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 § 2831 Burns 1901, § 2637 R. S. 1881. See Klenberg v. Russell (1890), 125 Ind. 531, 25 N.E. 596; Crum v. Conover (1896), 14 Ind.App. 264, 40 N.E. 644; Ft. Wayne, etc., R. Co. v. O'Keefe (1892), 4 Ind.App. 249, 30 N.E. 916. 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 wilfully inflicted. 3 Elliott, 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. Co. v. Bourgeois (1888), 66 Miss. 3, 5 So. 629, 14 Am. St. 534; Newman v. Vicksburg, etc., R. Co. (1886), 64 Miss. 115, 8 So. 172; French v. Western, etc., R. Co. (1893), 72 Hun 469, 25 N.Y.S. 229; Little Rock, etc., R. Co. v. Trotter (1881), 37 Ark. 593; Kerwhaker v. Cleveland, etc., R. Co. (1854), 3 Ohio St. 172, 62 Am. Dec. 246.
Under this paragraph, the failure of appellee to fence its track is not alone sufficient to create liability, as would be the case if this were an action under the statute, since, in the latter case, it is unnecessary to aver or prove that the injury was inflicted negligently. For, as said by this court in Chicago, etc., R. Co. v. Fenn (1892), 3 Ind.App. 250, 255, 29 N.E. 790: "Such statutory liability is in the nature of a police penalty, and was designed to promote the public safety." See, also, Grand Rapids, etc., R. Co. v. Jones (1882), 81 Ind. 523; Jeffersonville, etc., R. Co. v. Ross (1871), 37 Ind. 545; Jeffersonville, etc., R. Co. v. Dunlap (1868), 29 Ind. 426; Childers v. Louisville, etc., R. Co. (1895), 12 Ind.App. 686, 41 N.E. 21. While in the case at bar, the plaintiff must also aver and prove the negligent doing of an act by the company, other than its failure to fence, but for which, and without his fault, the injury would not have happened. Southern Ind. R. Co. v. Messick (1905), 35 Ind.App. 676, 74 N.E. 1097; Princeton Coal, etc., Co. v. Roll (1904), 162 Ind. 115, 66 N.E. 169; Duffy v. Gleason (1901), 26 Ind.App. 180, 58 N.E. 729.
The pleaded facts charge appellee with the commission of acts not per se negligent. It is the manner of their doing and the circumstances under which they are done which make...
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