Hanna v. The Terre Haute & Indianapolis Railroad Co.
| Decision Date | 07 June 1889 |
| Docket Number | 13,649 |
| Citation | 21 N.E. 903,119 Ind. 316 |
| Parties | Hanna et al. v. The Terre Haute and Indianapolis Railroad Company |
| Court | Indiana Supreme Court |
From the Montgomery Circuit Court.
The judgment is, affirmed, with costs.
N. P H. Proctor, for appellants.
J. G Williams, W. T. Brush and R. B. F. Peirce, for appellee.
Hanna and Goslin sued the Terre Haute and Indianapolis Railroad Company to recover the value of two cows, alleged to have been injured by the company's cars. The complaint is in two paragraphs; the first counts upon the statutory right of action, the charge being that the animals entered upon the railroad track and were injured at a point where the track was not securely fenced. The second paragraph is a common law action, for negligently injuring the plaintiff's animals. While there are some averments which render uncertain the theory upon which the pleader intended to rely, it is enough to say that the second paragraph does not charge that the animals were purposely or intentionally injured. Belt R R. Co. v. Mann, 107 Ind. 89, 7 N.E. 893; Louisville, etc., R. W. Co. v. Bryan, 107 Ind. 51, 7 N.E. 807; Gregory v. Cleveland, etc R. R. Co., 112 Ind. 385, 14 N.E. 228.
After the evidence was closed, the plaintiffs openly disclaimed any right to recover upon the first paragraph of their complaint, whereupon the court, of its own motion, instructed the jury to return a verdict for the defendant, on the ground that it appeared from the evidence that the plaintiffs were guilty of contributory negligence in permitting their animals to run at large in the vicinity of a railroad crossing. This is complained of as error.
It is proper for the court to direct a verdict for the defendant when the essential facts showing that the plaintiff has no right to recover are not controverted, or where, taking the plaintiff's evidence and all the legitimate inferences which a jury might reasonably draw from it, it is insufficient to sustain a verdict in his favor, so that a verdict for the plaintiff, if one should be returned, would be set aside. Gregory v. Cleveland, etc., R. R. Co., supra, and cases cited.
The appellants insist that contributory negligence is no defence in cases where animals are injured in consequence of the failure of a railroad company to fence its road as the statute requires, or where the injury is purposely or wilfully committed. Both of these propositions are abundantly settled in favor of the appellants' contention, but neither of them is involved in this appeal.
As we have seen, the appellants disclaimed any right of recovery under the first paragraph of their complaint, and the second, the only one to which the evidence was applicable, notwithstanding it abounds in vituperative epithets, was merely a common law action for negligence.
The evidence shows that the animals were wandering, unattended on a public highway, and that they went upon the railroad track...
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