Cleveland, C., C. & St. L. Ry. Co. v. Dugan

• Decision Date: 05 November 1897
• Citation: 18 Ind.App. 435,48 N.E. 238
• Court: Indiana Appellate Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. DUGAN.

18 Ind.App. 435

48 N.E. 238

CLEVELAND, C., C. & ST. L. RY. CO.

v.DUGAN.

Appellate Court of Indiana.

Nov. 5, 1897.

Appeal from superior court, Marion county; P. W. Bartholomew, Judge.

Action by John T. Dugan against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.Elliott & Elliott, for appellant. Holstein & Hubbard, Charles E. Barrett, and Henry Warrum, for appellee.

COMSTOCK, J.

The trial of this cause was had upon the second paragraph of the complaint. The only part of said paragraph which requires consideration is as follows: “That on the 18th day of December, 1894, and for a long time prior thereto, this plaintiff was engaged in farming said lands in said section thirty-one, and especially the land lying immediately adjoining the line of railroad running through said section thirty-one. And plaintiff avers that there is a public highway running from the center of said section thirty-one north, and what is known and called the ‘Crawfordsville Pike’ runs east and west through the center of said section thirty-one. That about forty rods east of the west line of said section thirty-one there is a road or public highway running north and south through said section thirty-one. That the plaintiff resided on the south side of the defendant's railroad in said section thirty-one, and on the west side of said north and south road; and on said 18th of December, 1894, plaintiff was engaged in farming the lands lying immediately north of said defendant's railroad and east of said public highway running north and south, as aforesaid, through said section. That said lands lying north of said railroad consisted of a forty-acre field, which was then and there used and being used by plaintiff as a pasture for his stock, consisting of horses and cattle. That defendant, along its said railroad, has a right of way forty feet wide on each side of its track, and it was then and there the duty of said defendant to keep said right of way securely fenced. That plaintiff's pasture field extended to said right of way. That on the 18th day of December, 1894, this plaintiff was engaged in pasturing said lands, as he had the lawful right to do, and among the stock so being pastured was a chestnut sorrel colt two years old. That wholly unknown to this plaintiff the defendant carelessly and negligently allowed, suffered, and permitted said fences along its right of way and adjoining the pasture of the plaintiff to get out of repair, so much so that the plaintiff's said horse escaped from said pasture field, and got upon the defendant's said right of way, and followed the same, until one of the trains of the defendant, coming from the west, and on its route to the city of Indianapolis, drove said horse east to said road running north from the center of said section thirty-one as aforesaid. That at the place where said railroad crosses said public highway running north and south from the center of said section thirty-one, it is the duty of the defendant to maintain proper and suitable guards in order that cattle, horses, and other stock may not get on said defendant's track and right of way, but the plaintiff avers that on the west side of said public highway running north from the center of said section thirty-one, at which point said public highway intersects said public highway known as the ‘Crawfordsville Pike,’ the defendant carelessly and negligently failed to keep and maintain any proper cattle guards, and said place was so carelessly and negligently kept and maintained that cattle, horses, and other stock could with ease pass over the same without hindrance. That plaintiff's said horse got upon said highway north of the defendant's right of way, and near the center of said section thirty-one, and started back to the pasture whence it came; and the defendant by its agents, servants, and employés, while running a locomotive and train of cars over said railroad, negligently and carelessly ran such locomotive and cars over, against, and upon the plaintiff's said horse, and there and thereby, on said 18th day of December, 1894, crippled, maimed, injured, and killed said horse.” Issues were made, a special verdict returned, upon which both parties moved for judgment. The motion of appellee was sustained, that of appellant overruled, and proper exceptions reserved. The questions for decision arise on the rulings on these motions.

Appellant contends that the theory of the complaint is that the appellant did not maintain a fence along the line of its right of way, and because of that breach of duty the horse of appellee entered upon the track of the appellant. Numerous decisions support the following propositions: (1) A pleading must proceed upon a definite theory, and be good on that theory, or it will not be good at all. (2) Each theory must be embodied in a separate paragraph, and no more than one theory can be pleaded in a single paragraph. (3) As only one theory can be contained in a single paragraph, the court must construe the pleading most strongly against the pleader, and determine the theory from the prominent or leading allegations of the pleading. The following authorities are cited in support of the first proposition: Insurance Co. v. Rogers, 11 Ind. App. 72, 38 N. E. 865;Smith v. Roseboom, 10 Ind. App. 126, 37 N. E. 559; Railroad Co. v. McCorkle, 140 Ind. 613, 40 N. E. 62;Bremmerman v. Jennings, 101 Ind. 253;Feder v. Field, 117 Ind. 386, 20 N. E. 129; Railroad Co. v. Bills, 104 Ind. 13, 3 N. E. 611;Railway Co. v. Godman, 104 Ind. 490, 4 N. E. 163;Cole Bros. v. Wood, 11 Ind. App. 37, 36 N. E. 1074. In support of the second: Batman v. Snoddy, 132 Ind. 480, 32 N. E. 327. In support of the third: Railroad Co. v. Sullivan, 141 Ind. 83, 40 N. E. 138. The specific breach of duty charged is the failure to fence at the place where the horse escaped from the pasture field. The alleged proximate result of the failureto fence was the escape of the horse, and its entry upon appellant's track. Substantially, the averments of the complaint concerning the cattle guard are as follows: The general averment of duty of appellant to maintain a sufficient cattle guard, and its failure to perform such duty; that the “plaintiff's horse got upon said highway north of defendant's right of way, and near the center of section thirty-one”; that the horse started back to the pasture; that the defendant negligently and carelessly ran its locomotive against and over said horse. The condition of the cattle guard is not shown to be the proximate cause of the injury. There is no statement of fact showing that the condition of the guard was the cause of the alleged injury. It is not alleged that the horse passed over the cattle guard. The particular land is described. The place of entry is specifically alleged. Looking to the leading allegations of the complaint to ascertain its theory, we conclude that the theory for which appellant...