Chicago And Erie Railroad Company v. Chaney
| Decision Date | 26 January 1912 |
| Docket Number | 7,450 |
| Citation | 97 N.E. 181,50 Ind.App. 106 |
| Parties | CHICAGO AND ERIE RAILROAD COMPANY v. CHANEY |
| Court | Indiana Appellate Court |
Rehearing denied April 3, 1912.
From Starke Circuit Court; F. J. Vurpillat, Judge.
Action by John Chaney against the Chicago and Erie Railroad Company. From a judgment for plaintiff, the defendant appeals.
Reversed.
Ulric Z. Wiley, Arthur H. Jones, W. O. Johnson and Peters & Peters, for appellant.
William J. Reed, for appellee.
Suit by appellee against appellant to recover damages for injury to a team of horses, caused by the alleged negligence of appellant.
Issues were joined, and the cause tried by a jury, which returned a general verdict for appellee in the sum of $ 200, and answers to a series of interrogatories.
Appellant's motions for judgment on the answers to the interrogatories and for a new trial were overruled, and this appeal taken.
Errors presenting the sufficiency of each of the paragraphs of complaint, and the ruling on the motion for new trial, are assigned and relied upon.
The first paragraph of amended complaint, omitting the formal parts, alleges, in substance, that on October 5, 1907 plaintiff was the owner of a team of horses, a buggy and a set of harness, of the value of $ 200, which horses were bitched to said buggy, etc.
The second paragraph avers that defendant had Then follows the allegation of ownership of said horses, etc., and that "by reason of said crossing being obstructed, as aforesaid," the horses went and entered upon the tracks of said railway, without any fault on the part of appellee; that while said property was on said tracks, "said defendant so carelessly and negligently ran and operated its locomotive and cars, that the same were run upon and over said animals * * * all in said county, and without any fault of said plaintiff."
The first question presented is the sufficiency of each of these paragraphs of complaint. It will be observed from the allegations of each paragraph that it nowhere appears in either where appellee's team entered on appellant's railroad track. So far as shown by the allegations of the complaint, it may have wandered on the track through an open, private gate along such railroad.
It is alleged in the first paragraph, in effect, "that said horses so hitched to said buggy on account of the carelessness and negligence of the defendant in the management of its cars went and entered upon the track of said railway." From these allegations it would appear that appellee was possibly relying on the fact that such animals "went and entered" on the track at a point where the company was required to fence, and had failed to do so, but if such be the theory of this paragraph, it is clearly bad, because of the failure to aver that the railroad was not fenced at the point where the animals entered. Louisville, etc., R. Co. v. Goodbar (1885), 102 Ind. 596, 3 N.E. 162; Louisville, etc., R. Co. v. Thomas (1886), 106 Ind. 10, 5 N.E. 198; Louisville, etc., R. Co. v. Quade (1883), 91 Ind. 295.
If this paragraph can be said to be good at all, it must be because of the later averments charging that "the defendant so carelessly and negligently ran and operated its cars and locomotive that the same was run against, upon and over the said animals, buggy and harness whereby," etc.
Appellee relies on the case of Ohio, etc., R. Co. v. Craycraft (1892), 5 Ind.App. 335, 32 N.E. 297, as authority for the sufficiency of the above allegations. That case does not contain the identical allegation of the first paragraph here involved, as counsel for appellee insist, and we think a distinction might be drawn between the charge of negligence in the two cases; but in view of the conclusion reached on the other feature of the case, we deem it unnecessary to dwell on such distinction.
It is sufficient to say in this connection, that the case last cited is authority only to the extent of holding that the language of the complaint in that case was "a sufficient allegation of the particular act of negligence complained of." The complaint in that case was not objected to on the ground that it did not allege or show where the animals entered the track, and this question was not therefore presented to, or determined by the court.
In view of the allegation of negligence on which this first paragraph in the case at bar proceeds, it becomes important and necessary to show where the animals entered on appellee's track. It would be only in case the animals entered at a highway or street crossing, or at some point where the law imposed on the railroad company the duty of giving the statutory signals, and otherwise operating its train with care, that the negligent operating and running of the train could be said to be such negligence as would furnish the causal relation necessary in such cases between the negligence charged and the resulting injury. If the animals entered the track at a point where appellant owed the duty of fencing, and had failed to fence, the negligent operation of the train would be wholly unimportant, because the sole and only negligence which furnishes the cause of action in such a case is the failure to fence in violation of the statute. On the other hand, if the animals entered the...
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