Cent. Indiana Ry. Co. v. Smith
| Decision Date | 04 June 1908 |
| Docket Number | No. 6,191.,6,191. |
| Parties | CENTRAL INDIANA RY. CO. v. SMITH. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Hamilton County; Ira W. Christian, Judge.
Action by Samuel M. Smith against the Central Indiana Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.U. C. Storer, for appellant. Shirts & Fertig, for appellee.
This was an action by appellee against appellant to recover the value of three horses and two mules, alleged to have been struck and killed by a locomotive and train of cars operated by appellant. The complaint was in one paragraph, answered by a general denial, trial by the court, special findings of fact made, and conclusion of law stated thereon, and judgment in favor of appellee for $465.
The errors relied upon for a reversal are the overruling of the demurrer to the complaint, erroneous conclusion of law, and the overruling of appellant's motion for a new trial. In support of the first specification of error appellant insists that the complaint is not sufficient, for the reason that it fails to allege that said animals did not enter upon its right of way through a gate at a farm crossing. The complaint alleged that the animals entered upon the railroad track at a point where the right of way and track of appellant was not but could have been fenced. This action is based upon section 5312, Burns' Ann. St. 1901 (Sp. Acts 1877, p. 61, c. 30, § 1), providing that “any railroad corporation, lessee, assignee, receiver, and other person or corporation running, controlling, or operating any railroad into or through this state shall be liable, jointly or severally, for stock killed or injured by the locomotives, cars, or other carriages run on such road,” etc. By the same enactment (section 5318, Burns' Ann. St. 1901), it is provided that “this act shall not apply to any railroad securely fenced in, and if such fence be properly maintained by such company, lessee, assignee, receiver or other person running the same.” On the question now being considered it is clear that a complaint, based upon these statutory provisions, will withstand a demurrer for want of facts, if it shows that the right of way was not securely fenced at the point where the animals entered upon the track. Chicago & Erie R. R. Co. v. Brannegan, 5 Ind. App. 540-544, 32 N. E. 790, and cases cited. The theory of appellant is that the law of 1885 (sections 5320-5327, Burns' Ann. St. 1901; Acts 1885, p. 148, c. 44; Id., p. 224, c. 91) relieved railroad companies from statutory liability for animals killed where they enter the right of way through gates at private farm crossings. With this contention we agree. So that, it may be conceded that since the act of 1885 a railroad company is not liable for injuring or killing animals that enter upon its right of way at a private farm crossing, except where such injury or killing is caused by the negligence of its servants. Pennsylvania Co. v. Spaulding, 112 Ind. 47, 13 N. E. 268;Hunt v. Lake Shore, etc., Ry. Co., 112 Ind. 69, 13 N. E. 263;Louisville, etc., Ry. Co. v. Hughes, 2 Ind. App. 68, 28 N. E. 158;Chicago, etc., Ry. Co. v. Ramsey, 168 Ind. 390, 81 N. E. 79. This principle rests on the theory that it is the duty of the landowner to keep the gate at his farm crossing closed when the same is not in use. Sections 5321, 5327, Burns' Ann. St. 1901. Therefore, in pleading the statutory liability of a railroad company for stock injured or killed in a collision with its locomotive or cars because of its failure to fence, it is only necessary for the pleader to show that the place where the animals entered the right of way was not fenced. If it was not the duty of the company to fence at such point, or if the animals entered through such open gate, these were matters of defense. Chicago, etc., R. Co. v. Brannegan, supra; Louisville, etc., R. Co. v. Hart, 2 Ind. App. 130, 28 N. E. 218;Louisville, etc., Ry. Co. v. Hall, 93 Ind. 245. The law, as it existed prior to the act of 1885, with reference to such liability of railroad companies, was not affected by the later acts, except where it is shown that such animals entered upon the right of way through gates at farm crossings. Louisville, etc., R. Co. v. Hart, supra; Chicago, etc., Ry. Co. v. Brown, 33 Ind. App. 603, 71 N. E. 908. Appellant insists that appellee in his complaint should have negatived the exception, but the authorities seem to hold otherwise. The exception to the law upon which this action is founded is by virtue of a subsequent enactment, and is controlled by the well-settled rule, “If the exception be contained in a subsequent clause or statute, it is a matter of defense, and need not be negatived in the information.” Brutton v. State, 4 Ind. 601;Cleveland, etc., v. Gray, 148 Ind. 266, 272, 46 N. E. 675. The demurrer was properly overruled.
The second error is based on the exception to the conclusion of law. As to this specification it is argued that the conclusion of law was erroneous, for the reason that the court failed to find that the point where the stock entered on the right of way and track of appellant “was not a farm crossing or gate.” For the...
To continue reading
Request your trial