Lake Erie & W. Ry. Co. v. Fishback
| Decision Date | 17 November 1892 |
| Parties | LAKE ERIE & W. RY. CO. v. FISHBACK. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Jay county, D. D. Heller, Judge.
Action by Edson C. Fishback against the Lake Erie & Western Railway Company for damages for a horse killed by defendant. From a judgment for plaintiff, defendant appeals. Affirmed.
J. J. M. La Follette, Oscar H. Adair, F. S. Foote, and W. E. Hackerdorn, for appellant. John M. Smith, for appellee.
In this case the appellee recovered a judgment against the appellant in the Jay circuit court for killing a horse. The amended complaint filed in the cause consisted of three paragraphs. A demurrerhaving been overruled to each paragraph, a general denial was filed, and upon the issue thus joined the cause was tried by a jury, and a verdict returned in favor of the appellee. Interrogatories were submitted to and answered by the jury. The appellant moved for a judgment upon the answers to the interrogatories submitted to the jury. This motion was overruled. The appellant then filed a motion for a new trial, which was overruled, and a judgment rendered upon the verdict in favor of the appellee. Proper exceptions were taken. The assignment of errors is as follows:
First in order comes the alleged error of the court in overruling the demurrer to the several paragraphs of the complaint. In argument, appellant's counsel say that the first paragraph is bad, because “it contains no averment that the killing of the horse occurred at a place where the road might have been fenced.” The brevity of this paragraph of the complaint seems to indicate a poverty in the English language which is not generally understood. As it appears in the record the paragraph is as follows: “The plaintiff above named, for his amended first paragraph of complaint, complains of the defendant, the Lake Erie & Western Railroad Company, and says that said defendant is a corporation duly organized under the laws of the state of Indiana; that heretofore, to wit, on the ------ day of January, 1891, the said defendant was the owner of and operating a railroad, with locomotives and cars, over and through the farm of the said plaintiff, in Richland township, Jay county, Ind.; that on said day of January, aforesaid, the plaintiff's horse strayed upon the track of said defendant at a point where the same was not securely fenced; that said defendant, with its locomotive and train of cars, ran over and against said horse without any fault on plaintiff's part, wounded, maimed, and killed the same, to plaintiff's damage in the sum of one hundred and fifty dollars, which is due and unpaid, for which he demands judgment.” In an action of this kind, if it is alleged in the complaint that the railroad was not fenced at the place where the animal entered upon it, it is not necessary that it be also alleged or shown that the railroad could have been properly fenced at such place. Railway Co. v. Hughes, 2 Ind. App. 68, 28 N. E. Rep. 158. If such is the fact, it is a matter of defense. Railroad Co. v. Kious, 82 Ind. 357; Railroad Co. v. Lyon, 72 Ind. 107; Railroad Co. v. Brevoort, 30 Ind. 325; Railroad Co. v. Mosier, 101 Ind. 597, 1 N. E. Rep. 197; Railroad Co. v. Parker, 109 Ind. 235, 9 N. E. Rep. 787; Railroad Co. v. Modesitt, 124 Ind. 212, 24 N. E. Rep. 986; Railroad Co. v. Herbold, 99 Ind. 91; Railroad Co. v. Tipton, 101 Ind. 197. Manifestly, it was the intention of the pleader, judging from what little he has expressed in his complaint, to proceed under the statute requiring railroad companies to fence their roads, or else become liable for animals killed by their machinery, without regard to the question of negligence.
It is also insisted that the first and second paragraphs of the complaint are fatally defective, for the reason that it is not averred therein that the horse was killed in Jay county. In support of this proposition we are referred to the following cases: Railroad Co. v. Epperson, 59 Ind. 438; Railroad Co. v. Davis, 83 Ind. 89; Railroad Co. v. Breckenridge, 64 Ind. 113; Railroad Co. v. Kious, 82 Ind. 357. In the light of these authorities it unquestionably appears that the paragraphs mentioned are defective, and, if the objection had been properly taken in the court below, we should have reversed this case. “The action is purely statutory; that is, in the absence of the statutes, the appellant would not be liable to the appellee for the injury to his stock, upon the facts stated in the complaint.” Railroad Co. v. Davis, supra. The allegation in a complaint under this statute, as to the place where stock is killed, is in its nature jurisdictional. Railroad Co. v. McClelland, 59 Ind. 440.
The demurrer filed was for want of sufficient facts to constitute a cause of action. The causes for which a demurrer may be filed to a complaint, under our Code, are stated in the subdivisions of section 339 of the Revised Statutes. The first provides...
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