New York, C. & St. L.R. Co. v. Zumbaugh

Citation39 N.E. 1058,12 Ind.App. 272
PartiesNEW YORK, C. & ST. L. R. CO. v. ZUMBAUGH.
Decision Date12 March 1895
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Marshall county; A. C. Capoon, Judge.

Action by John Zumbaugh against the New York, Chicago & St. Louis Railroad Company to recover for horses killed by defendant's train. From a judgment for plaintiff, defendant appeals. Reversed.

Morris, Bell, Barrett & Morris, for appellant. Chas. Kellison, for appellee.

DAVIS, J.

The facts in this case are identical, in all material respects, with the facts in the case of Railroad Co. v. Zumbaugh (No. 1,298; decided Nov. 1, 1894) 38 N. E. 531. It appears from the statement of counsel that five horses, two of which belonged to the appellee in this case, and three of which belonged to the appellee in the former case, strayed upon appellant's track at the same time, and over the same cattle guard, and were killed by the same engine and train of cars, and at the same time. The errors assigned in the court are: (1) That the court erred on overruling appellant's demurrer to the complaint. (2) That the court erred in overruling appellant's motion for a new trial.

On examination we find that the complaint in this case is, in all material respects, identical with the complaint in the former case. As the complaint was held sufficient in that case, it is not necessary to further consider the question on this appeal.

On the trial, George W. Vaughan, civil engineer on appellant's railroad, testified fully as to the manner in which the cattle guard in question was constructed; that it was a standard guard,-a steel slat guard; that such guards were in general use by other systems of railroads, and had been for several years; that he had made the question of the construction and adoption of cattle guards a specific study, and that, from his experience, he regarded this cattle guard as capable and sufficient to turn stock generally. There was no error in refusing to allow this witness to testify that the cattle guard in question was the best cattle guard to turn stock generally, and at the same time not injure the lives of the employés and traveling public. Pennsylvania Co. v. Mitchell, 124 Ind. 473, 24 N. E. 1065, and authorities there cited.

The court on the trial gave to the jury, among others, the following instruction: “No. 12. The plaintiff is entitled to recover, not only the value of the horses on the day they were killed, but he is entitled to receive in addition thereto interest thereon at six per cent. from the date of the injury to the present time.” Counsel for appellant earnestly insist that so much of the instruction as relates to the recovery of interest was radically wrong. Section 5312, Rev. St. 1894 (section 4025, Rev. St. 1881), provides that any railroad shall be liable for stock killed or injured by the locomotive, cars, or other carriages run on such road. Section 5316, Rev. St. 1894 (section 4029, Rev. St. 1881), provides that the court or jury shall give judgment for the plaintiff for the value of the animals killed or the injury done. Section 5318, Rev. St. 1894 (section 4031, Rev. St. 1881), provides that the act shall not apply to any railroad securely fenced in, if such fence be properly maintained. See, also, Railway Co. v. Thomas, 106 Ind. 10, 5 N. E. 198; Railroad Co. v. Johnson, 59 Ind. 188. In Texas the statute provides that the “company shall be liable to the owner for the value of all stock killed or injured by the locomotive and cars of such railroad company in running over the respective railways”; and it is there held that the statute in express terms makes the value of the “stock killed or injured” the measure of the damages allowed the owner, and that interest thereon from the date when killed to the date of the verdict cannot be recovered. Railroad Co. v. Muldrow, 54 Tex. 233. In action for damages growing out of negligence a different rule prevails in that state. In one case the court says: “It now seems to be generally held, that, where a party has a right to recover damages for the wrongful destruction of property, interest ought to be allowed as compensation.” Railway Co. v. Tankersley, 63 Tex. 57. In Kansas, in an action to recover damages under the railroad stock law of 1874 for killing stock on its unfenced railroad, it was held interest could not be recovered. Railroad Co. v. Gabbert, 34 Kan. 132, 8 Pac. 218. In Iowa the statute provides that the recovery shall be in double the amount of the actual damages, and in that state no interest is allowed. Brentner v. Railroad Co., 68 Iowa, 530, 23 N. W. 245, and 27 N. W. 605. In Illinois, in an action to recover damages for killing stock on the railroad on account of the negligence of the company in failing to fence the track, it was held error to instruct the jury to allow interest. Railway Co. v. Johnston, 74 Ill. 83;Railway Co. v. Arnold, 43 Ill. 418. In actions for damages for negligently killing stock, interest is not allowed in Missouri. Meyer v. Railroad Co., 64 Mo. 542. In Colorado, in actions for damages on account of negligence, interest is not allowed. The court says: “Interest in this state is a creature of the statute, and regulated thereby. It is only recoverable, in the absence of contract, in the cases enumerated in the statute, and damages to property, arising from the wrong or negligence of the defendant, is not one of the enumerated cases.” Railroad Co. v. Conway, 8 Colo. 1, 16, 5 Pac. 142. In Lackin v. Canal Co., 22 Hun, 309, the court held that, in actions to recover damages for stock killed on its track through failure to securely fence the railroad, the owner was entitled to recover interest. In Minnesota, in an action to recover the value of two colts killed by a passing locomotive, when the colts entered upon the track through a breach in the railroad right of way fence, the court said: “The jury were also instructed, in case they found for the plaintiff, to allow interest on the value of the property from the time of the injury. This was proper. It is not a case in which exemplary damages were claimed or allowed, and the basis of plaintiff's claim for compensation is the value of the property destroyed. In such cases, interest is necessarily allowed for the indemnity of the party. The same rule applies as in case of conversion of property.” Varco v. Railway Co., 30 Minn. 18, 13 N. W. 921. This is also the rule in such cases in Arkansas. Railway Co. v. Biggs, 50 Ark. 169, 6 S. W. 724. In Parrott v. Ice Co., 46 N. Y. 369, the court says: “In cases of trover, replevin, and trespass, interest on the value of the property unlawfully taken or converted is allowed by way of damages, for the purpose of complete indemnity of the party injured; and it is difficult to see why,...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT