New York, C. & St. L.R. Co. v. Zumbaugh
| Decision Date | 01 November 1894 |
| Citation | 11 Ind.App. 107,38 N.E. 531 |
| Court | Indiana Appellate Court |
| Parties | NEW YORK, C. & ST. L. R. CO. v. ZUMBAUGH. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Marshall county; A. C. Capron, Judge.
Action by Henry Zumbaugh against the New York, Chicago & St. Louis Railroad Company to recover for the death of stock caused by reason of defective guards along defendant's tracks. Plaintiff had judgment, and defendant appeals. Affirmed.
Packard & Drummond and Morris, Bell, Barrett & Morris, for appellant. Charles Kellison, for appellee.
The appellee recovered judgment against appellant for the value of stock which had entered upon its right of way by reason of insufficient cattle guards, and was then killed by its trains. The appellee's right of action is founded upon section 5312, Rev. St. 1894 (section 4025, Rev. St. 1881), and not upon section 5323, Rev. St. 1894, being the act of 1885, requiring in direct terms that railroad companies shall fence their lands under certain circumstances, and in default thereof the adjoining land owner may do so, and recover the cost thereof. Section 4 of this act of 1885, being section 5326, Rev. St. 1894, expressly provides: “Nothing in this act contained shall in any manner affect or change the liability of railroad corporations, or of the assignees, lessees or receiver of such corporations for stock killed or injured upon their railroads; but such liability shall exist and be governed by laws now in force the same as if this act had never been passed.” The liability of the railroad company for stock killed is not, therefore, in any degree limited or lessened by the terms of said section 5323. While they are not, by this section, compelled to fence their road through uninclosed and unimproved lands, they are none the less liable, under the former law, for stock killed by reason of their failure to fence their roads through such lands. Railway Co. v. Hughes, 2 Ind. App. 68, 28 N. E. 158;Louisville, etc., Ry. Co. v. Consolidated Tank Line Co., 4 Ind. App. 40, 30 N. E. 159;Railway Co. v. Wrape, 4 Ind. App. 108, 30 N. E. 427; Railroad Co. v. Dunlap, 112 Ind. 93, 13 N. E. 403.
Counsel urge the failure of the evidence to sustain the verdict, insisting that it fails to show the insufficiency of the cattle guards over which the horses passed in entering upon the right of way. The cattle guard was minutely described to the jury, both as to the materials and mode of construction. It also appeared from the evidence that at different...
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