Louisville, N. A. & C. R. Co. v. Porter

• Decision Date: 26 September 1884
• Docket Number: 11,228
• Citation: 97 Ind. 267
• Parties: Louisville, New Albany and Chicago Railway Company v. Porter
• Court: Indiana Supreme Court

97 Ind. 267

Louisville, New Albany and Chicago Railway Company v. Porter

No. 11,228

Supreme Court of Indiana

September 26, 1884

From the Montgomery Circuit Court.

The judgment is affirmed, with costs.

A. D Thomas, for appellant.

L. J Coppage, for appellee.

OPINION

Zollars J.

Appellant appeals from a judgment in favor of appellee for the value of a horse killed upon its track. The action is based upon the statute in relation to fencing railroad tracks. Art. 4, ch 38, R. S. 1881. The collision occurred near where the railroad crosses a public highway obliquely.

On the east side of the highway there is a cattle-pit, with wing fences leading up to it on either side.

The witnesses do not agree exactly, but the conclusion to be drawn from their statements is that the cattle-pit is about fifty feet east from the east line of the highway. On the north side of the railroad, parallel with and some distance from it, there is a fence extending from the highway and joined to the wing-fence at the cattle-pit. The space bounded by the fence, the railroad and wing-fence, is what the witnesses and counsel call the pocket. From this the fences prevent an escape to the north or east. Previous to the collision, the horse was upon the space so bounded as above stated. As a train approached from the northwest, he attempted to cross the track to the south, and was struck by the train and killed.

It is established by the decided weight of the evidence, that this space, or pocket, is no part of the public highway, and that the cattle-pit might be placed at the highway without any interference with it, or any inconvenience to any one. Had it been so placed, with proper fences connected, the collision could not have occurred. That railway companies are bound, under the law, to maintain proper cattle-pits to prevent the ingress of animals from public highways, is well settled by the adjudicated cases. Evansville, etc., R. R. Co. v. Barbee, 74 Ind. 169.

In the general verdict for appellee, there is necessarily included a finding that the space, or pocket, from which the horse went upon the track, might and should have been, but was not, fenced so as to prevent the ingress of animals. There was no fence opposite, on the south side of the track, nor was there any other fence to exclude them. We can not, therefore, disturb the verdict upon the weight of the evidence.

Another reason why we could not disturb the verdict upon the evidence is, that all of the evidence is not before us. There is a statement in the bill of exceptions that it contains all of the evidence given in the cause, but other portions of the bill show that this is not true. Huston v. McCloskey, 76 Ind. 38; Cosgrove v. Cosby, 86 Ind. 511.

A plat of the grounds was used in the examination of the witnesses, and was introduced in evidence. Many answers of the witnesses are unintelligible without it.

In the second instruction the court charged the jury that a railway company is not bound to fence its track so as to deprive the public, or private individuals, of the full and free enjoyment thereof, and the right to travel and use the same; that where the track can be fenced without interfering with the free use thereof by the company, or with the rights and privileges of the public or private individuals, it is the duty of the company to build and maintain fences.

This instruction is too broad in some of its statements of the rule exempting railway companies from the duty of fencing, but this is an error in favor of appellant, of which it, therefore, can not complain; it could by no possibility have worked injury to appellant.

A judgment will not be reversed on account of erroneous instructions, which can work no injury to the complaining party. Hayden v. Souger, 56 Ind. 42 (26 Am. R. 1); Mooney v. Kinsey, 90 Ind. 33.

The jury was charged in the fourth instruction, that if the horse was killed at a point where the company should have, but did not maintain a fence, the company is liable. The position of appellant's counsel seems to be that the only...