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

• Decision Date: 08 January 1884
• Docket Number: 10,506
• Citation: 92 Ind. 457
• Parties: Louisville, New Albany and Chicago Railway Company v. Harrington
• Court: Indiana Supreme Court

92 Ind. 457

Louisville, New Albany and Chicago Railway Company v. Harrington

No. 10,506

Supreme Court of Indiana

January 8, 1884

From the Carroll Circuit Court.

The judgment is affirmed, with costs.

W. F Stillwell, for appellant.

J Applegate and C. R. Pollard, for appellee.

OPINION

Niblack J.

This was an action by Abraham Harrington against the Louisville New Albany and Chicago Railway Company, commenced in the superior court of Tippecanoe county and taken by change of venue to the Carroll Circuit Court, where upon a trial there was a verdict for the plaintiff, assessing his damages at $ 112.50. Motion in arrest of judgment overruled, and judgment on the verdict.

The only error assigned is that the complaint did not state facts sufficient to constitute a cause of action against the appellant. With some verbal changes of a merely formal character, the complaint was as follows:

"The plaintiff complains of the defendant and says that at the time hereinafter mentioned the defendant, * * * a corporation duly organized, * * * was the owner of a certain railroad known as the Louisville, New Albany and Chicago Railway, together with the track, cars, locomotives and other appurtenances thereto belonging; that on or about the 10th day of April, 1882, the plaintiff was the owner and possessed of a certain mare of the value of $ 125, and which mare casually and without the fault of the plaintiff, strayed in and upon the track and ground occupied by the railroad of the defendant, at a point about one-half mile north of the city of Lafayette in the county of Tippecanoe, where said railroad was not securely fenced in, * * * and at a point on said railroad where the same could have been securely fenced in, and such a fence properly maintained by the defendant. And the plaintiff further alleges that said defendant, by its agents and servants, ran against and over the said mare of the plaintiff and killed and destroyed the same, to the damage of the plaintiff $ 125."

The objection made to the sufficiency of the complaint is that it did not aver that the mare was run over and killed by the cars, locomotive or other carriage of the defendant, referring to section 4025, R. S. 1881, under which this action is prosecuted.

It is true, that the averment in the complaint, relating to the manner in which the mare was killed, did not bring this case fully within the provisions of the section of the statute referred to, which makes railroad companies liable in certain cases for stock killed or injured by their...