New York, Chicago and St. Louis Railroad Company v. Zumbaugh

• Decision Date: 12 March 1895
• Docket Number: 1,459
• Citation: 39 N.E. 1058,12 Ind.App. 272
• Parties: NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY v. ZUMBAUGH
• Court: Indiana Appellate Court

39 N.E. 1058

12 Ind.App. 272

NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY v. ZUMBAUGH

No. 1,459

Court of Appeals of Indiana

March 12, 1895

From the Marshall Circuit Court.

Judgment reversed with instruction to sustain appellant's motion for a new trial.

R. C Bell, J. M. Barrett and S. L. Morris, for appellant.

C Kellison, for appellee.

DAVIS J. GAVIN, J., absent.

OPINION

DAVIS, J.

The facts in this case are identical, in all material respects, with the facts in the case of the New York, etc., R. R. Co. v. Zumbaugh, 11 Ind.App. 107, 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 this court are:

1. That the court erred in 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, Geo. 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 so used for several years; that he had made the question of the construction and adoption of cattle guards a special 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 employes 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, R. S. 1894, 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, R. S. 1894, 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, R. S. 1894, provides that the act shall not apply to any railroad securely fenced in, if such fence be properly maintained. Sections 4025, 4029 and 4031, R. S. 1881. See, also, Louisville, etc., R. W. Co. v. Thomas, 106 Ind. 10, 5 N.E. 198; Baltimore, etc., R. W. 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 their 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 the damages allowed the owner, and that interest thereon from the date when killed to the date of the verdict can not be recovered. Houston & Texas, etc., R. R. Co. v. Muldrow, 54 Tex. 233.

In actions 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 that interest ought to be allowed as compensation." Texas, etc., R. W. 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 that interest could not be recovered. Atchison, etc., R. R. Co. v. Gabbert, 34 Kan. 132, 8 P. 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. Chicago, etc., R. W. Co., 68 Iowa 530, 23 N.W. 245, 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. Toledo, etc., R. W. Co. v. Johnston, 74 Ill. 83; Toledo, etc., R. W. Co. v. Arnold, 43 Ill. 418.

In actions for damages for negligently killing stock, interest is not allowed in Missouri. Meyer v. Atlantic, etc., R. R. 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." Denver, etc., R. R. Co. v. Conway, 8 Colo. 1, 5 P. 142 (16).

In Lackin v. President, etc., Delaware and Hudson Canal Co., 29 Hun 309 (N. Y.), 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, where 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 properly 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. Chicago, etc., R. W. Co., 30 Minn. 18, 13 N.W. 921.

This is also the rule in such cases in Arkansas. St. Louis, etc., R. W. Co. v. Biggs, 50 Ark. 169, 6 S.W. 724.

In Parrott v. Knickerbocker and New York Ice Cos., 46 N.Y. 361, 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, on the same principle, interest on the value of the property lost or destroyed by the wrongful or negligent act of another may not be included in the damages." See, also, Whitehall Trans. Co. v. New Jersey Steamboat Co., 51 N.Y. 369.

In actions to recover damages for killing stock by reason of negligence of the railroad company, interest on the value of the stock killed, from the date of the loss to the time of the trial, is allowed in Alabama. Alabama, etc., R. R. Co. v. McAlpine Co., 75 Ala. 113; Georgia Pacific R. R. Co. v. Fullerton, 79 Ala. 298.

The same rule prevails in Wisconsin. Chapman v. Chicago, etc., R. W. Co., 26 Wis. 295.

The question here presented has never been decided in this State.

In Blickenstaff v. Perrin, 27 Ind. 527, a verdict in an action for damages for...