Michigan Central Railroad Company v. Farrell

• Decision Date: 26 November 1912
• Docket Number: 7,754
• Citation: 99 N.E. 1026,52 Ind.App. 603
• Parties: MICHIGAN CENTRAL RAILROAD COMPANY v. FARRELL
• Court: Indiana Appellate Court

99 N.E. 1026

52 Ind.App. 603

MICHIGAN CENTRAL RAILROAD COMPANY v. FARRELL

No. 7,754

Court of Appeals of Indiana

November 26, 1912

Rehearing denied March 5, 1913.

From Lake Superior Court; Virgil S. Reiter, Judge.

Action by John J. Farrell against the Michigan Central Railroad Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

J. G Ibach and L. V. Cravens, for appellant.

McAleer Bros., for appellee.

HOTTEL J. Ibach, J., not participating.

OPINION

HOTTEL, J.--

This is an appeal from a judgment for $ 300 obtained by appellee in the Lake Superior Court.

The complaint is in two paragraphs, each of which charges appellant with negligently running over and killing two of appellee's horses, which had entered on its right of way at a point where it is alleged appellant had negligently failed to maintain a sufficient fence.

The first paragraph proceeds on the theory that appellant had negligently allowed its fence at the point where the horses entered on its right of way "to become broken down, old, worn out, and out of repair and down." The second paragraph differs from the first in that it proceeds on the theory that appellant had negligently failed to fence its track "properly * * * and in fact had no fence at all or any guard or protection of any character to prevent stock or said horses from entering in or on the right of way," etc. To each of these paragraphs a demurrer was filed and overruled and exceptions saved. A general denial was the only answer. A motion for new trial was overruled. The rulings on said demurrers and the motion for a new trial present the errors assigned and relied on.

It is urged against the sufficiency of each paragraph of the complaint that it is not alleged (1) "that the servants and employes of the appellant at the time of the alleged injury to plaintiff's horses were operating appellant's train in the line of their duty or employment," and (2) that the running of appellant's train against appellee's horses was without any fault or neglect on the part of appellee.

The averments of the first paragraph of complaint, against which said objections are urged, are, in substance, as follows: On July 12, 1907, defendants owned, operated and controlled a certain line of railroad and railroad tracks running through the town of Gary, Lake county, Indiana, and on said day ran locomotives and cars over said railroad tracks and on its right of way for the transportation of passengers and freight; that on July 12, 1907, this plaintiff was the owner of two horses, of the value of $ 300 each, which said horses, on the above-mentioned date, without any fault or negligence on the part of plaintiff, entered in and strayed upon the right of way and tracks belonging to said defendant, and were struck by one of defendant's trains; that said defendant by its servants and employes did then and there run one of its locomotives upon and against said horses, striking said horses, then and there wounding and injuring said horses, so that they then and there died as a result of said injury. It is averred that said horses entered on said track at a point where it was not sufficiently fenced, etc.

The second paragraph of said complaint avers on this subject that the defendant "on the 12th day of July, 1907, owned and operated and controlled certain railroad tracks, right of way and trains of cars running through the town of Gary, Lake county, Indiana; that on said day the defendant by their servants, agents, and employes were then and there running locomotives and cars over said tracks and right of way for the transportation of passengers and freight; that on said day aforesaid the plaintiff was the owner of two horses of the value of $ 300 each, which said horses on the above mentioned date without any fault or negligence on the part of plaintiff strayed upon the tracks or right of way of said defendants in the town of Gary, Lake county, Indiana, and were struck by a locomotive belonging to said defendants and running upon said defendant's tracks and conducted by the servants, agents and employes of said defendants in their behalf and were so injured by being struck that they then and there died as a result; * * * that the said right of way and tracks and engines operated on said tracks belonged to said defendant and were controlled, operated and managed by the agents, servants and employes of the defendants on said day and for six months prior thereto; * * * that at the point where the horses so entered upon defendant's said right of way, said right of way was not properly or securely fenced, * * * and in fact at said point * * * there was no fence of any kind or character," etc.

The above allegations sufficiently show that appellant was operating its locomotives by its agents, etc. In support of this conclusion see Baltimore, etc., R. Co. v. Dickey (1909), 43 Ind.App. 509, 511, 87 N.E. 1047; Cleveland, etc., R. Co. v. VanNatta (1909), 44 Ind.App. 608, 612, 87 N.E. 999, 88 N.E. 716, and authorities cited; Chicago, etc., R. Co. v. Stepp (1909), 44 Ind.App. 353, 88 N.E. 343; Indianapolis Union R. Co. v. Waddington (1907), 169 Ind. 448, 457, 458, 82 N.E. 1030; Southern R. Co. v. Elliott (1908), 170 Ind. 273, 82 N.E. 1051; Indianapolis St. R. Co. v. Schmidt (1904), 163 Ind. 360, 71 N.E. 201; Indianapolis St. R. Co. v. Ray (1906), 167 Ind. 236, 78 N.E. 978.

In support of the second objection above indicated, it is insisted by appellant that the averments simply show that the horses entered on the right of way of appellant without the fault of appellee, but fail to show that the killing was without appellee's fault. Taking the averment in its entirety we do not think that it is open to the objection made. It should be stated, however, in this connection that where liability is predicated on the violation of a statute which provides a civil remedy for damages resulting from such violation, as in this case, that the authorities hold that it is not necessary that the complaint in such case should aver that the plaintiff was without fault. It has been decided in cases where liability was predicated on the statute here involved, that this averment was unnecessary. Toledo etc., R. Co. v. Cory (1872), 39 Ind. 218; Louisville, etc., R. Co. v. Whitesell (1879), 68 Ind. 297; Welty v. Indianapolis, etc., R. Co. (1886), 105 Ind. 55, 4 N.E. 410; Chicago, etc., R. Co. v. Brannegan (1892), 5 Ind.App. 540, 32 N.E. 790; Terre Haute, etc., R. Co. v. Schaefer (1892), 5 Ind.App. 86, 88, 31 N.E. 557; Fort Wayne, etc., R. Co. v. Woodward (1887), 112 Ind. 118, 120, 13 N.E. 260. There are some cases, however, which by inference or by express language...