Cincinnati v. McDougall

Decision Date08 October 1886
Citation8 N.E. 571,108 Ind. 179
CourtIndiana Supreme Court
PartiesCincinnati, H. & I. R. Co. v. McDougall.

OPINION TEXT STARTS HERE

Appeal from Marion circuit court.

R. D. Marshall and Harris & Calkins, for appellant. Offutt & Black, for appellee.

Mitchell, J.

McDougall sued the railroad company for damages for killing his horse. He alleged, in his complaint, that the horse strayed upon the railroad track at a point where it was not securely fenced, and was run over and injured by the defendant's engine and cars.

A summons was issued, upon which the sheriff returned that service thereof was made upon the defendant, naming it, by reading and delivering a certified copy “to ------- Schindler, a conductor on train No. 39, a regular passenger train running on said company's railroad.” The appellant insists that the court erred in overruling a motion to quash the sheriff's return to the summons; the objection being that it omits the Christian name of the conductor. There is no merit in this point. Section 4027, Rev. St. 1881, authorizes summons to be served “by copy on any conductor on any train on said road passing into or through said county.” Service in compliance with the statute is had when a copy of the summons is delivered to a conductor on any train of the railroad passing through or into the county. It is not essential that the sheriff should ascertain and accurately state the full name of the conductor.

The point is also made that because the complaint does not allege that the appellant was a corporation, or that it, or any assignee, lessee, or other person, was operating its railroad, a demurrer for want of sufficient facts should have been sustained to the complaint. The appellant was designated in the complaint as “The Cincinnati, Hamilton & Indianapolis Railroad Company.” This sufficiently indicated that the defendant was a corporation. Johnson v. State, 65 Ind. 204, and cases cited; Norton v. State, 74 Ind. 337;Franklin v. State, 85 Ind. 99. Section 4025, Rev. St. 1881, renders any railroad corporation, lessee, assignee, receiver, or other person or corporation running, controlling, or operating any railroad, liable, jointly or severally, for stock killed. Under this statute it is immaterial whether the railroad is operated by the company owning the line, or by another. A railroad corporation is liable for stock killed on its line in the event it has failed to securely fence its track. Indianapolis, etc., R. Co. v. Ray, 51 Ind. 269. Moreover, the complaint avers that “the defendant, by and with her locomotive engine and cars, then and there operated, run, and controlled by the defendant's servants and employes, struck, run against,” etc. This averment very clearly indicates that the train was being operated by the appellant.

Under the assignment that the court erred in overruling appellant's motion for a new trial, counsel contend there was no sufficient or competent evidence to establish the fact that the appellant was a corporation, or that it operated the engine and train of cars which inflicted the injury upon the appellee's horse. The evidence was to the effect that the horse was injured upon the track of a railway which was known as the Cincinnati, Hamilton & Indianapolis Railroad, a branch of the Cincinnati, Hamilton & Dayton Railroad. Prima facie, this indicated a corporation of that name. It was sufficient to raise such an inference. The animal having been injured, as the proof showed, by a train run upon the track of that railroad, the appellant was presumptively liable for the injury. Evansville, etc., R. Co. v. Snapp, 61 Ind. 303.

The plaintiff, while testifying in his own behalf, was inquired of, on his direct examination, as to the value of the horse killed. He declined to fix the value, or express any opinion on that subject. The appellant, on cross-examination, sought to show...

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11 cases
  • Kansas City & G. Ry. Co. v. Haake
    • United States
    • Missouri Supreme Court
    • October 22, 1932
    ... ... v. Heckman (Colo.), 101 P. 976 ...          In ... Littledike v. Wood, supra, the court said: "In the case ... of Cincinnati, H. & I. Railroad Co. v. McDougall, ... 108 Ind. 179, 8 N.E. 571, it is said that such valuations are ... to be regarded as having been made for a ... ...
  • Railway Co. v. Haake
    • United States
    • Missouri Supreme Court
    • October 22, 1932
    ...Railroad Co. v. Heckman (Colo.), 101 Pac. 976. In Littledike v. Wood, supra, the court said: "In the case of Cincinnati, H. & I. Railroad Co. v. McDougall, 108 Ind. 179, 8 N.E. 571, it is said that such valuations are to be regarded as having been made for a special purpose, and that they a......
  • Littledike v. Wood
    • United States
    • Utah Supreme Court
    • March 23, 1927
    ... ... property." ... Cases ... from many different jurisdictions are there cited ... In the ... case of Cincinnati, H. & I. R. Co. v ... McDougall, 108 Ind. 179, 8 N.E. 571, it is said that ... such valuations are to be regarded as having been made for a ... ...
  • Rush v. Foos Mfg. Co.
    • United States
    • Indiana Appellate Court
    • June 29, 1898
    ...nature, are to receive a liberal construction. Insurance Co. v. Warner, 28 Ill. 429; Pope v. Manufacturing Co., supra; Railroad Co. v. McDougall, 108 Ind. 179, 8 N. E. 571. So far as we have been able to investigate, we do not find any state having statutory provisions identical to ours in ......
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