Evansville & Terre Haute Railroad Co. v. Tipton

• Decision Date: 04 April 1885
• Docket Number: 11,399
• Citation: 101 Ind. 197
• Parties: The Evansville and Terre Haute Railroad Company v. Tipton
• Court: Indiana Supreme Court

101 Ind. 197

The Evansville and Terre Haute Railroad Company v. Tipton

No. 11,399

Supreme Court of Indiana

April 4, 1885

From the Sullivan Circuit Court.

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

J. C Briggs, for appellee.

OPINION

Colerick C.

This action was instituted by the appellee to recover the value of two horses, one of which was killed and the other injured on the appellant's railroad at a place not securely fenced. The issues were tried by a jury, who returned a verdict in favor of the appellee for $ 200, upon which, over a motion for a new trial, judgment was rendered against the appellant, from which it has appealed, and assigns as errors that the court below erred in overruling a demurrer to the complaint, and in overruling the motion for a new trial.

The only objection that has been made by the appellant in this court to the sufficiency of the complaint is, that it was averred therein that the railroad track was not "sufficiently fenced" at the place where the horses got on the track, and where they were injured and killed. It is insisted by the appellant that the words "sufficiently fenced" merely averred a conclusion, rather than a fact. The language used in the statute, under which the action was instituted, is "securely fenced." We think the word "sufficiently," as used in the complaint, is of the same import and meaning as the word "securely," and hence no error was committed by the court in overruling the demurrer to the complaint.

Of the reasons assigned in support of the motion for a new trial, the sole one presented by the appellant for our consideration is, that the verdict was contrary to the evidence, and was not sustained by sufficient evidence, in this, that the evidence, which is in the record, showed that the animals were injured and killed at a place on the railroad where the appellant was not bound to fence. Upon an examination of the evidence we find that the appellant introduced evidence tending to prove that the construction of a fence at the place where the animals got on the track, and where they were injured and killed, would have interfered with the rights of the appellant in operating its railroad and transacting its business, and with the rights of the public in travelling over and along an adjacent highway. This evidence was competent, as it is settled in this State, by the decisions of this court, that a railroad company is not required to fence in its railroad at such places, and is not liable to the owners of animals injured or killed at such places by its locomotives or cars in consequence of the absence of fences. Indianapolis, etc., R. R. Co. v. Oestel, 20 Ind. 231; Jeffersonville, etc., R. R. Co. v. Beatty, 36 Ind. 15; Indianapolis, etc., R. R. Co. v. Christy, 43 Ind. 143; Ohio, etc., R. W. Co. v. Rowland, 50 Ind. 349; Louisville, etc., R. W. Co. v. Francis, 58 Ind. 389; Wabash R. W. Co. v. Forshee, 77 Ind. 158; Cincinnati, etc., R. R. Co. v. Wood, 82 Ind. 593; Evansville, etc., R. R. Co. v. Willis, 93 Ind. 507; Wabash, etc., R. W. Co. v. Nice, 99 Ind. 152; Fort Wayne, etc., R. R. Co. v. Herbold, 99 Ind. 91.

But whenever and wherever the company can fence in its railroad without such interference, it must do so, or be held liable for all damages occasioned by such omission. Baltimore etc., R. R. Co. v. Kreiger, 90 Ind. 380; Banister v. Pennsylvania Co., 98 Ind. 220. And the burden of showing that a fence could not properly have been maintained at the locus in quo rests on the company. Indianapolis, etc., R. R. Co. v....