Evansville & T.H.R. Co. v. Mosier

• Decision Date: 11 May 1888
• Citation: 17 N.E. 109,114 Ind. 447
• Parties: Evansville & T. H. R. Co. v. Mosier.
• Court: Indiana Supreme Court

114 Ind. 447

17 N.E. 109

Evansville & T. H. R. Co.

v.Mosier.¹

Supreme Court of Indiana.

May 11, 1888.

Appeal from circuit court, Knox county; N. F. Malott, Judge.

Iglehart & Taylor, for appellant. Cobb & Cobb, for appellee.

Mitchell, C. J.

Mosier recovered judgment against the appellant railroad company for the value of two colts killed by the company's cars, on its track, upon which the animals entered on the morning of the 22d day of August, 1883. The evidence shows without dispute that the animals escaped from the inclosure in which they were pasturing through a gate at a private crossing which led from a public highway over the company's right of way and track to some inclosed pasture lands. The inclosure embraced a tract of land comprising 135 acres, which, although owned in separate parcels by the plaintiff and four others, was surrounded by a common fence, and was used as a common pasture by the several owners. There were two private crossingsleading over the company's right of way to the pasture; one at the north, and the other at the south end of the tract. The plaintiff habitually used the south gate, but on the occasion in question his animals passed out through the north gate onto the railway track. The company erected and maintained the gates at the crossings, and when the gates were closed, and properly fastened, the road was securely fenced. The fastening on the north gate had become so far defective, that unless adjusted with care by persons passing through, the gate was liable to be blown open, or it might be opened by animals coming in contact with it. This was known to at least one of the land-owners, but it does nor appear to have been known to the company or its agents, the crossings having been used, so far as appears, exclusively by the owners of the pasture land. There was no evidence tending to show the agreement under which the gates had been erected, nor did it appear that the company had agreed with the land-owners to keep the gates shut, or maintain them in repair. The section foreman, whose duty it was to pass over and keep that portion of the track and the adjacent fences in repair, observed the condition of the gates the evening before the animals were injured. He saw that the north gate was slightly “sagged,” as it had been for some time before, but it was then closed, and apparently in a safe condition.

Relevant to the evidence as thus summarized the court charged the jury substantially that if they found from the evidence that the gate through which the animals escaped was kept up as a part of the fence, for the convenience and benefit of the several land-owners, or some of them, in using a private crossing over the railroad from the pasture to the public highway, and if they should further find that, with reasonable care in securing the fastening of the gate when shutting it, the gate was sufficient to prevent the escape of stock, and was usually kept closed, then their verdict should be for the defendant. In this instruction the court presented to the jury the theory or conditions upon which they might exonerate the defendant from liability. They were...