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

• Decision Date: 10 April 1885
• Docket Number: 11,404
• Citation: 101 Ind. 337
• Parties: Louisville, New Albany and Chicago Railway Company v. Hixon
• Court: Indiana Supreme Court

101 Ind. 337

Louisville, New Albany and Chicago Railway Company v. Hixon

No. 11,404

Supreme Court of Indiana

April 10, 1885

From the Porter Circuit Court.

W. F Stillwell and W. Johnston, for appellant.

D. J Wile and F. E. Osborn, for appellee.

OPINION

Franklin C.

Appellee sued appellant for the killing of a horse by the running of the cars on its railroad. Issue was formed by a general denial to the complaint.

The suit was commenced in Laporte county, and was transferred by change of venue to Porter county, where there was a trial by the court, which resulted in a finding for the plaintiff, and over motions for a new trial, and in arrest of judgment judgment was rendered upon the finding.

The errors assigned are, overruling the motions for a new trial and in arrest of judgment, and in permitting the plaintiff to amend his complaint after the trial had closed and the judgment had been rendered.

The reasons for a new trial are, the finding is not sustained by sufficient evidence, and is contrary to law. It is insisted by appellant that the evidence fails to prove that the horse was killed in Laporte county.

The plaintiff testified that he lived with his father south of Westville, near the Louisville, New Albany and Chicago Railroad; that the horse was killed on the railroad upon his father's premises where they lived.

Mr. Crumpacker testified that he lived three miles south of Westville; he was acquainted with the horse; gave his age and pedigree; and that he saw him dead the next morning after he was killed.

We think this evidence sufficiently shows that the horse was killed on the railroad in the neighborhood of three miles south of Westville. This court will take judicial notice of the geography of the county, and the location of the towns therein. Indianapolis, etc., R. R. Co. v. Case, 15 Ind. 42; Indianapolis, etc., R. R. Co. v. Stephens, 28 Ind. 429; Stultz v. State, ex rel., 65 Ind. 492; Grusenmeyer v. City of Logansport, 76 Ind. 549; Wilcox v. Moudy, 82 Ind. 219; Terre Haute, etc., R. R. Co. v. Pierce, 95 Ind. 496.

In accordance with the above cases this court will take notice that Westville is in Laporte county; and that the neighborhood three miles south of Westville, where the horse was killed, is also in Laporte county.

It is further insisted that there was no evidence tending to show that appellant owned, operated, or controlled the road on which the appellee's animal was alleged to have been killed.

The plaintiff testified that the animal was killed on appellant's road, and that several trains had for a long time daily passed over the road. We think this evidence tended to show not only that the appellant was the owner of the road, but that it controlled the running of the cars thereon.

Appellant further insists that there is no evidence showing that the road, where the horse entered upon it, was not securely fenced. The evidence shows that where the horse entered upon the track and was killed, the fence had been burned up for more than two months before the killing. If that was its condition, the road could not then have been securely fenced.

It is still further insisted that there was no evidence tending to prove that the horse had been struck by the locomotive or cars of appellant. The evidence shows that the horse was seen well, the day before he was killed, in the pasture feeding by the side of the road in the vicinity of where he was found the next morning dead by the side of the road, with a large "scar" on his right side, and otherwise badly bruised; that his tracks on the railroad grade showed that he had been running north on the west side of the grade, and that in attempting to cross the...