Indianapolis & Vincennes Railroad Co. v. Sims

• Decision Date: 08 January 1884
• Docket Number: 9625
• Citation: 92 Ind. 496
• Parties: The Indianapolis and Vincennes Railroad Company et al. v. Sims
• Court: Indiana Supreme Court

92 Ind. 496

The Indianapolis and Vincennes Railroad Company et al. v. Sims

No. 9625

Supreme Court of Indiana

January 8, 1884

From the Morgan Circuit Court.

Judgment reversed, with instructions to sustain appellant's motion for a new trial.

S. O Pickens, for appellants.

L Ferguson and J. H. Jordan, for appellee.

OPINION

Elliott, J.

The general rule is, that in order to recover against a railroad company for killing cattle, it must be shown that the road was not fenced at the point where the cattle entered upon it, and as the right to recover in such cases is of statutory origin, it would seem to follow that in all cases and in all courts the complaint should charge that the road was not fenced at the place where the cattle entered. That it must do so in the circuit court is firmly settled. Jeffersonville, etc., R. R. Co. v. Lyon, 72 Ind. 107; Toledo, etc., R. W. Co. v. Stevens, 63 Ind. 337; Ohio, etc., R. W. Co. v. Miller, 46 Ind. 215. But it is held that it is not necessary that the complaint in an action before a justice of the peace should make such an averment. Indianapolis, etc., R. R. Co. v. Adkins, 23 Ind. 340; Ohio, etc., R. W. Co. v. Miller, supra; Toledo, etc., R. W. Co. v. Stevens, supra. We are not entirely satisfied with the reasoning upon which these last cases proceed, for if the railroad company is liable only by virtue of the statute, and only when the cattle enter at an unfenced place, it is difficult to perceive how there can be a cause of action under the statute without an averment that the road was not fenced at the place where the cattle entered, but we feel bound by the former decisions and must follow them. As the action was commenced before a justice of the peace, we must sustain the complaint, although it does not contain the averment that the road was not fenced at the place where the cattle entered on appellant's roadway.

A complaint good in the justice's court is good on appeal. An amendment in the circuit court does not necessarily change the character of the pleading, nor take it out of the rules which apply to pleadings on appeal from justices of the peace.

The complaint is in one paragraph and charges that "on or about the 20th day of December, 1880," the defendant did, "with its locomotive and train of cars running on and over its road, through said county, run over and kill and maim one red and white spotted steer ten years old, one red and white spotted heifer two years old, and one hog weighing 200 pounds."

Where several animals are killed at the same time, there is only one cause of action. Indianapolis, etc., R. R. Co v. Elliott, 20 Ind. 430; Jeffersonville, etc., R. R. Co. v. Brevoort, 30 Ind. 324. Where animals...