Fort Wayne, C. & L. R. Co. v. Woodward

• Decision Date: 12 October 1887
• Citation: 112 Ind. 118,13 N.E. 260
• Parties: Fort Wayne, C. & L. R. Co. v. Woodward.
• Court: Indiana Supreme Court

112 Ind. 118

13 N.E. 260

Fort Wayne, C. & L. R. Co.

v.Woodward.

Supreme Court of Indiana.

October 12, 1887.

Appeal from circuit court, Allen county; E. O'Rourke, Judge.

Coombs, Bell & Morris, for appellant. W. G. Colerick, for appellee.

Mitchell, J.

Conceding that the complaint stated facts sufficient to constitute a cause of action, we have concluded, after an attentive consideration of the evidence in the record, that the judgment of the circuit court is not sustained by the proof.

The case made is briefly as follows: The plaintiff was in the habit of pasturing his horses on a narrow strip or tract containing about four acres of land, lying lengthwise along the appellant railway company's right of way in Wells county. This strip of ground was securely fenced all round, except that there was no fence between it and the company's right of way. In order to gain access to the pasture, a gate had been erected, and was being maintained with the company's permission, through a fence erected by the company along a public highway over which its right of way had been levied. It had been the plaintiff's habit to turn his horses from the highway through the gate thus maintained, and to allow them to pass thence along and over the company's right of way some 10 or 12 rods, until they reached a point where they could pass from the right of way onto the pasture lot, which lay in common with the right of way. It is to be inferred that the gate was erected and maintained by and for the benefit of the owner of the pasture lot. It was the plaintiff's custom to observe when the last train, as he supposed, passed over the railroad in the evening, after which he would turn his horses through the gate, and allow them to go to the pasture in the manner above described. His habit was to take them out of the pasture, over the right of way and through the gate, in the morning, in advance of the passage of the first train. On the evening of August 23, 1885, the appellant turned two horses owned by him through the gate, onto the company's right of way. He watched them until they passed over and from the right of way into the pasture field. At some time during the night the animals wandered back upon the right of way, and in the morning one was found dead, and the other severely injured, from contact with a passing train on the appellant's track. Upon the foregoing undisputed facts, was the company liable to the appellant for not having fenced its track in compliance with the act approved April 13, 1885?

That it was the duty of the company to maintain a sufficient fence between its right of way and the appellee's...