Evansville & Terre Haute Railroad Co. v. Willis

• Decision Date: 22 February 1884
• Docket Number: 10,968
• Citation: 93 Ind. 507
• Parties: Evansville and Terre Haute Railroad Company v. Willis et al
• Court: Indiana Supreme Court

93 Ind. 507

Evansville and Terre Haute Railroad Company v. Willis et al

No. 10,968

Supreme Court of Indiana

February 22, 1884

From the Sullivan Circuit Court.

Judgment reversed, at appellees' costs, with instructions to the court below to sustain the appellant's motion for a new trial, and for further proceedings.

A Iglehart, J. E. Iglehart and E. Taylor, for appellant.

J. B Patton, J. T. Hays, J. T. Beasley and H. J. Hays, for appellees.

OPINION

Hammond, J.

This was an action by the appellees against the appellant to recover damages for killing a mule by the appellant's locomotive and cars, between the switch at Carlisle station and a bridge in Sullivan county, where the railroad was not securely fenced.

The appellant answered by a general denial, and also by a special paragraph, alleging that the injury complained of occurred near the town of Carlisle, at or near a point on the railroad track where it connects with a switch, used by the appellant for switching cars and trains of cars from and to the main track of the railroad; that it would be inconvenient and impracticable to fence the railroad at said place, or to build cattle-guards there, for the reason that if such fence or cattle-guards were there, they would interfere with the free use and enjoyment of said railroad, and switching privileges therewith connected, by the appellant, its servants, employees and the public dealing with it, and that the same would greatly endanger the lives of said employees operating trains of cars on said road, and in switching the same from said main track to and from said switch.

The appellees replied in denial of the special paragraph of the answer. There was a trial by jury; verdict for appellees; motion for a new trial overruled, and exceptions; and judgment on the verdict.

The evidence in the case establishes the following facts: At and north of the town of Carlisle, the appellant's railroad runs north and south. There are at that station two side tracks, one on either side of the main track, each connecting with the main track at a switch target north of the depot. The depot is situated between the main track and the west side track. West of, and near the west side track, between the depot and the north switch target, 150 feet south of said target, there is a steam flouring-mill, which receives and ships grain and flour on the appellant's cars. There is a wagon road from the mill to the side track, which is used by teams in loading and unloading at the mill and on and off cars standing on the side track. Each of the side tracks is used by the appellant in transacting its regular business, and by the public in loading and unloading freight. Seven hundred and fifty feet north of the switch target referred to there is a public highway running nearly east and west, and passing under a bridge crossed by the railroad at that point. The railroad embankment next to and south of the bridge is from fifteen to eighteen feet high, and gradually lowers to eight feet in height at the switch. The sides of the embankment are steep, but for a short distance near the switch a man can walk along the side thereof. The company's right of way is eighty feet wide, forty feet on either side of the center of the railroad track. Approaching the switch from the north the road is on a steep up-grade, which continues south of the switch. An average freight train on the appellant's road extends from the switch across the bridge over the highway, and some distance north of it.

The appellees' mule escaped from their field east of the railroad and north...