Lake Erie And Western Railroad Co. v. Rinker

• Decision Date: 05 November 1896
• Docket Number: 1,885
• Parties: LAKE ERIE AND WESTERN RAILROAD COMPANY v. RINKER
• Court: Indiana Appellate Court

45 N.E. 80

16 Ind.App. 334

LAKE ERIE AND WESTERN RAILROAD COMPANY v. RINKER

No. 1,885

Court of Appeals of Indiana

November 5, 1896

From the Delaware Circuit Court.

Affirmed.

J. B Cockrum, A. W. Brady and Rollin Warner, for appellant.

E. M White, J. G. Leffler and W. L. Ball, for appellee.

OPINION

REINHARD, J.

The appellee brought this action against the appellant to recover damages for the alleged killing of a cow upon appellant's railroad track, said cow having entered upon the track at a point where the same was not securely fenced. There was a jury trial and a verdict in appellee's favor for $ 65.00. From the judgment rendered upon such verdict this appeal is prosecuted.

The following errors are assigned:

1. The complaint does not state facts sufficient to constitute a cause of action.

2. The court had not jurisdiction over the subject of the action.

3. The court erred in overruling appellant's demurrer to the first and second paragraphs of the complaint, and each of them.

4. The court erred in overruling appellant's motion for a new trial.

5. The court erred in overruling appellant's motion in arrest of judgment.

Originally the complaint was in two paragraphs. At the trial, the second paragraph of the complaint was dismissed, thus leaving the first paragraph alone in the record.

The cause of action, as stated in the complaint, is based upon an alleged failure of the appellant to comply with the requirements of the act of 1877, sections 5312-5318, Burns' R. S. 1894 (4025-4031, R. S. 1881). This is not controverted by appellant.

It is insisted that the complaint is fatally defective in failing to aver that the animal was killed in the county of Delaware. Under the statute upon which this section is based, the complaint must show the animal was killed in the county in which the action was instituted. Louisville, etc., R. W. Co. v. Johnson, 11 Ind.App. 328, 36 N.E. 766, and cases cited. The question as to such omission may be raised by demurrer, or assignment of error for the want of jurisdiction, or by motion in arrest of judgment (Louisville, etc., R. W. Co., supra), but not by a demurrer for want of sufficient facts to constitute a cause of action. Lake Erie & Western R. W. Co. v. Fishback, 5 Ind.App. 403, 32 N.E. 346; Chicago, etc., R. W. Co. v. Wheeler, 14 Ind.App. 62, 42 N.E. 489.

In the present case the question is properly raised by the motion in arrest and by assignment of error that the court below did not possess jurisdiction of the subject of the action.

We think, however, the complaint sufficiently shows the appellee's cow was killed in Delaware county. It is averred in the complaint in substance that the appellant operated a railroad in Delaware county, Indiana, between Muncie and Oakville, in said county, and that while said cow was on said corporation's right of way and railway track, having entered the same at a point where said line of road and line of way was insecurely fenced and insufficient to keep out stock, etc., she was struck and hit by the appellant's locomotive and train of cars, was thrown from said railroad track, and killed.

It thus appears by the clearest implication that the animal was killed in Delaware county. If the appellant's...