Louisville, New Albany and Chicago Railway Co. v. Shanklin

• Decision Date: 29 March 1884
• Docket Number: 11,227
• Citation: 94 Ind. 297
• Parties: The Louisville, New Albany and Chicago Railway Company v. Shanklin
• Court: Indiana Supreme Court

94 Ind. 297

The Louisville, New Albany and Chicago Railway Company v. Shanklin

No. 11,227

Supreme Court of Indiana

March 29, 1884

From the Montgomery Circuit Court.

A. D Thomas and E. V. Brookshire, for appellant.

G. W Paul and J. E. Humphries, for appellee.

OPINION

Bicknell C. C.

The appellee brought this action against the appellant to recover the value of two horses killed by the appellant's train of cars on the line of its railway.

A demurrer to the complaint, for want of facts sufficient, was overruled. The defendant answered in two paragraphs: 1. The general denial. 2. That at the place where the horses entered upon the railway the defendant could not lawfully fence its road, because there was a public highway there. The plaintiff replied, denying the second defence. The issues were tried by a jury, who returned a verdict for the plaintiff for $ 275 they also returned with their verdict interrogatories and answers thereto, which interrogatories they were required by the court, on motion of the defendant, to answer. The defendant moved the court to require the jury to answer interrogatory No. 3 more fully. This motion the court overruled. The defendant moved for a new trial. This motion was overruled; judgment was rendered on the verdict; the defendant appealed. The following errors are assigned:

1. Overruling the demurrer to the complaint.

2. Overruling the motion for a new trial.

The complaint alleged that "where said horses got upon said track of defendant's railroad, the said track of said road was not fenced."

The appellant claims that the allegation should have been that the track was "not securely fenced," and that some day should have been named as the time when the road was not fenced.

These objections can not be sustained. The language of the statute, "not securely fenced," comprehends cases where there is no fence, and if the complaint was not sufficiently specific as to time, such a defect is not reached by a demurrer, but by a motion to make more specific. Ohio, etc., R. W. Co. v. Collarn, 73 Ind. 261.

The following were the reasons for a new trial:

1. The verdict is not sustained by sufficient evidence, and is contrary to the evidence.

2. The verdict is contrary to law.

3. Error in giving each of the instructions numbered 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10, asked for by the plaintiff, and each of the instructions numbered 1, 2, 3, 4 and 5, given by the court of its own motion, and in refusing to give instruction No. 11, asked for by the defendant.

4. Error in refusing to require the jury to answer more fully interrogatory numbered 3.

The fourth of these reasons for a new trial is not discussed in the appellant's brief, and is, therefore, regarded as waived.

The first four of the instructions, given at the request of the plaintiff, stated, in substance, that a public highway may be abandoned by the public in whole or in part, and thereby may cease to be a highway in whole or in part, and that if, at the place where the plaintiff's horses went upon the railway, there had once been a public highway, which had been abandoned by the public for over thirty years, then it would stand as if it had never been a highway. There was evidence to which these instructions were applicable, the chief controversy being whether there was a public highway where the horses went upon the railway. There was no error in these instructions. Jeffersonville, etc., R. R. Co. v. O'Connor, 37 Ind. 95.

The other instructions, given at the request of the plaintiff relate to the duty of the defendant to fence its road. They state, in substance, that the burden of proof is on the plaintiff to show that the road was not fenced, and on the defendant to show that it was not bound to fence its road at that point; that a railroad company is not liable in such an action as this, if its road ought not to be fenced at the point in question, and is not bound to fence its road at highway crossings, nor at any place where such fencing would interfere with the rights of the public, or the proper management of the business of the railroad; and that if there is a highway...