Louisville v. Thomas
| Decision Date | 02 March 1886 |
| Citation | 5 N.E. 198,106 Ind. 10 |
| Parties | Louisville, E. & St. L. Ry. Co. v. Thomas. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Gibson circuit court.
Thos. R. Paxton, for appellant.
McCullough & Miller, for appellee.
In this case the appellee, Thomas, sued the appellant railway company, in a complaint of three paragraphs. The object of the suit was to recover the value of a certain mare, owned and possessed by appellee, alleged to have been killed by a locomotive and train of cars owned, used, and operated by appellant on the line of its railway, in Gibson county. In the first paragraph, appellee has stated his cause of action under the statute which makes a railway company whose tracks are not securely fenced in liable in damages for all animals killed or injured by its engines or cars used and operated on the line of its railway, without regard to any questions of willfulness, negligence, or unavoidable accident. In the third paragraph, appellee alleged that he was the owner of a bay mare valued at $130; that in the evening of June 18, 1883, appellee's mare was turned into his pasture field, which field was securely fenced in and inclosed; that in the night of that day, without the knowledge or negligence of appellee, his mare escaped from his pasture, and strayed upon appellant's railroad track, in Gibson county; that appellant's servants and employes, who were then and there running and operating its locomotive and train of cars on its railroad track, wrongfully, willfully, and negligently ran such locomotive and cars in close pursuit of appellee's mare upon such track for a quarter of a mile, and until such locomotive ran against and upon such mare, and thereby so wounded and injured such mare that she then and there died, without any contributory fault or negligence on the part of appellee; to his damage, etc. The second paragraph of complaint contains a more lengthy and detailed statement of the killing of appellee's mare than the third paragraph, and differs therefrom in some material particulars. Thus, it is alleged in the second paragraph that, at the point where appellee's mare entered upon appellant's railroad track, such track was not securely fenced in, which fact was not stated in the third paragraph. So, again, it was not alleged in the second paragraph that appellant's locomotive or cars struck or touched appellee's mare; but it is averred that appellant's servants, in charge of such locomotive and cars, wrongfully and willfully pursued the mare along the track, at a place where the mare could not escape from or leave the track, at such a high rate of speed as to drive and frighten her into its trestle-work, whereby the mare was so injured and wounded that she then and there died; to appellee's damage, etc. Appellant answered by a general denial of the complaint. The issues joined were tried by a jury, and a verdict was returned for appellee, assessing his damages at $125. Over appellant's motion for a new trial the court rendered judgment on the verdict.
The only error assigned here by appellant is the overruling of its motion for a new trial. It is claimed by appellant's counsel that there is no evidence in the record of this cause which tends to prove the cause of action stated by appellee, in either the second or third paragraphs of his complaint. Counsel says:
To the case as thus stated appellant's counsel has expressly limited his argument in this court, and therefore we shall confine this opinion to the consideration of the same case. It is earnestly insisted by appellant's counsel that the verdict of the jury was not sustained by sufficient evidence, and was contrary to law, in two particulars, namely: First, because the evidence clearly shows that appellant's railroad track was “inclosed on both sides with a proper fence, distant 25 or 30 feet from the center of the track,” at the point where appellee's mare entered upon such track; and, second, because the evidence fails to show that appellee's mare was injured or killed by actual contact or collision with appellant's locomotive or cars on the line of its railroad. We will consider the evidence in reference to these two points, in the order in which they are stated, and decide the questions thereby presented.
1. In section 4025, Rev. St. 1881, in force since July 2, 1877, it is provided that any railroad corporation running, controlling, or operating any railroad into or through this state shall be liable for stock killed or injured by the locomotives, cars, or other carriages run on such road, in the name in which the road was run or operated at the time, to the extent and according to the provisions of the statute. In section 4029, Rev. St. 1881, being section 5 of the same statute, it is further provided as follows:
“On the hearing of any such cause, the court or jury trying the same shall give judgment for the plaintiff or plaintiffs for the value of the animal or animals killed, or the injury done, without regard to the question whether such killing or injury was the result of willful misconduct or negligence, or the result of unavoidable accident.”
Section 4031, Rev. St. 1881, being section 7 of the same act, in force since July 2, 1877, reads as follows:
“This act shall not apply to any railroad securely fenced in, and if such fence be properly maintained by such company, lessee, assignee, receiver, or other...
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Cent. Indiana Ry. Co. v. Smith
...were killed or injured by an actual collision with a locomotive or cars owned or operated by the defendant. Louisville, etc., R. Co. v. Thomas, 106 Ind. 10, 5 N. E. 198;Childers v. Louisville, etc., Ry. Co., 12 Ind. App. 686, 41 N. E. 21. The evidence, as disclosed by the record in this cas......
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Gonsenhauser v. New York Cent. R. Co.
...This appears to be an open question in this State. In many States, proof of the actual collision is required (Louisville, E. & St. L. Ry. Co. v. Thomas, 106 Ind. 10, 5 N.E. 198; Foster v. St. Louis, I. M. & S. R. Co., 90 Mo. 116, 2 S.W. 138; and see Annotation 163 A.L.R. 1233, However, ther......