Ft. Wayne, C. & L. R. Co. v. Herbold

• Decision Date: 13 December 1884
• Docket Number: 11,099
• Citation: 99 Ind. 91
• Parties: Fort Wayne, Cincinnati and Louisville Railroad Company v. Herbold
• Court: Indiana Supreme Court

99 Ind. 91

Fort Wayne, Cincinnati and Louisville Railroad Company v. Herbold

No. 11,099

Supreme Court of Indiana

December 13, 1884

From the Delaware Circuit Court.

Judgment affirmed.

W. H Coombs, R. C. Bell, S. Morris, O. J. Lotz and F. Ellis, for appellant.

C. W Moore and G. H. Koons, for appellee.

OPINION

Elliott, J.

The appellee instituted this action to recover the value of a cow injured and a heifer killed by the locomotive and cars of the appellant. The action is founded upon the statute making it the duty of railroad companies to fence their roads, and imposing a liability for animals killed or injured because of the failure to perform this statutory duty.

Our decisions settle some general principles which apply to this case, and which it is proper to declare at the outset constitute the law governing the case.

If animals enter upon the roadway at a place where it was the duty of the railroad company to fence, and are killed or injured, the company is liable if there was no secure fence at that place. Wabsh, etc., R. W. Co. v. Tretts, 96 Ind. 450; Lake Erie, etc., R. W. Co. v. Kneadle, 94 Ind. 454; Louisville, etc., R. W. Co. v. Quade, 91 Ind. 295; Louisville, etc., R. W. Co. v. Overman, 88 Ind. 115; Jeffersonville, etc., R. R. Co. v. Lyon, 72 Ind. 107; Toledo, etc., R. W. Co. v. Howell, 38 Ind. 447.

If the place is one that can not be fenced without interfering with the business of the company in the discharge of its duty to the public, or if the place is one which can not be fenced without interfering with the use of a highway, then there is no obligation to fence resting upon the company. Indiana, etc., R. W. Co. v. Leak, 89 Ind. 596; Indianapolis, etc., R. R. Co. v. Kinney, 8 Ind. 402; Lafayette, etc., R. R. Co. v. Shriner, 6 Ind. 141; Bellefontaine R. W. Co. v. Suman, 29 Ind. 40; Indianapolis, etc., R. R. Co. v. Christy, 43 Ind. 143.

If the company can not fence at the place where the animals entered without endangering the safety of the persons engaged in the management and running of its locomotives and trains, it is absolved from the statutory duty of fencing. Lake Erie, etc., R. W. Co. v. Kneadle, supra; Evansville, etc., R. R. Co. v. Willis, 93 Ind. 507.

Where cattle-guards are necessary to prevent animals from entering upon the roadway, and fences can not be built, then it is the duty of the company to construct proper cattle-guards, provided the place is one where, under the rules just stated, it is practicable to do so. Wabash, etc., R. W. Co. v. Tretts, supra; Whitewater R. R. Co. v. Bridgett, 94 Ind. 216; Grand Rapids, etc., R. R. Co. v. Jones, 81 Ind. 523; Evansville, etc., R. R. Co. v. Barbee, 74 Ind. 169; Indianapolis, etc., R. R. Co. v. Irish, 26 Ind. 268; Pittsburgh, etc., R. R. Co. v. Ehrhart, 36 Ind. 118; Indianapolis, etc., R. R. Co. v. Bonnell, 42 Ind. 539; Louisville, etc., R. W. Co. v. Porter, 97 Ind. 267.

The statute does not, in terms, make any exceptions to the duty to fence, but the courts have recognized the existence of exceptions, casting, however, the burden of showing that the place is one which, under the rules stated, can not be fenced, upon the railroad company claiming an exemption from the general statutory rule. Wabash, etc., R. W. Co. v. Tretts, supra; Louisville, etc., R. W. Co. v. Clark, 94 Ind. 111; Lake Erie, etc., R. W. Co. v. Kneadle, 94 Ind. 454; Terre Haute, etc., R. R. Co. v. Penn, 90 Ind. 284; Pittsburgh, etc., R. W. Co. v. Laufman, 78 Ind. 319; Indianapolis, etc., R. W. Co. v. Thomas, 84 Ind. 194; Indianapolis, etc., R. R. Co. v. Lindley, 75 Ind. 426; Wabash R. W. Co. v. Forshee, 77 Ind. 158; Ohio, etc., R. W. Co. v. Rowland, 50 Ind. 349.

Where there is evidence upon all the material points fairly tending to support the verdict, it will not be disturbed.

The evidence satisfactorily shows that the animals injured entered upon the railroad at a point where it was not fenced, and were struck by one of the appellant's locomotives, so that the only question in the case is whether the company has shown, by a preponderance of the evidence, that the place was one which it was not its duty to fence.

Near the place where the animals entered upon the track, it obliquely crosses a highway known as the Granville turnpike, and crosses it at very sharp angles, so that, in order to fully pass the lines of the turnpike, a train must traverse a distance of ninety feet. A cattle-guard was constructed across the railroad track at right angles and connected with a fence, but this guard was located sixty feet and four inches north of the north line of the highway, thus leaving a considerable piece of ground "pocket shaped," as the witnesses described it, not protected. The evidence was conflicting as to whether the cattle-guard was or was not placed at a point where it would best keep off cattle, but we can not say that there was not evidence sustaining the finding of the jury upon this question. It is not enough, as our decisions declare, to build fences or construct cattle-guards, but they must also be constructed so as to be reasonably well adapted to keep animals from entering upon the track. It is obvious that where cattle-guards are improperly constructed or unsuitably located, the railroad can not be said to be "securely fenced in," and this is what the statute in express terms requires of railroad companies. R. S. 1881, sec. 4031. It is no doubt true that railroad companies are not held to the exercise of extraordinary diligence and care, but they certainly are held to the exercise of ordinary care, prudence and diligence in the location and construction of fences and cattle-guards.

We do not think the evidence shows that to have located the cattle-guard nearer the line of the turnpike would have endangered the safety of its agents or servants, or have interfered, in the sense intended by our decisions, with the transaction of its business. There was no depot, nor was there any switch in the vicinity of the highway, nor any mill or factory from which freight was received, or at which freight was discharged; all that the evidence shows is that there was a highway crossing of a somewhat unusual character. This fact does not authorize the conclusion that the company was not bound to "securely fence in" its track. Something more than this must be shown in order to escape the performance of the statutory duty.

The only plausible ground upon which it can be argued that the company was not bound to place a cattle-guard nearer the line...