The Chicago And Erie Railroad Company v. Brannegan

• Decision Date: 13 December 1892
• Docket Number: 686
• Citation: 32 N.E. 790,5 Ind.App. 540
• Parties: THE CHICAGO AND ERIE RAILROAD COMPANY v. BRANNEGAN
• Court: Indiana Appellate Court

32 N.E. 790

5 Ind.App. 540

THE CHICAGO AND ERIE RAILROAD COMPANY v. BRANNEGAN

No. 686

Court of Appeals of Indiana

December 13, 1892

From the Wabash Circuit Court.

Judgment affirmed.

O Gresham and H. C. Pettit, for appellant.

A Taylor and H. H. Plummer, for appellee.

OPINION

NEW, J.

This action was brought by the appellee to recover the value of one yearling colt, which it is alleged went upon appellant's right of way at a point where it was not, but ought to have been, securely fenced; and was there killed by appellant's cars.

The complaint is in two paragraphs. The only material difference in the said paragraphs being, that in the first it is claimed that the colt was killed, while in the second it is claimed it was mortally wounded.

A demurrer to each paragraph, for want of facts, was overruled.

An answer in two paragraphs was filed:

1st. The general denial.

2d. That at the point where said colt entered upon the right of way, said company was not required to fence.

A reply in general denial to the second paragraph of answer was filed, and upon issue thus joined the cause was tried by a jury, who returned a verdict for the appellee, assessing his damages in the sum of eighty-five dollars. The jury also returned the following interrogatories and answers with their general verdict:

"1st. Where had the defendant been pasturing the colt in question for two months or more, preceding its death? If you say a field, whose field and what bordered it on the south? A. The defendant pastured no colts to our knowledge.

"2d. How long had a fire, if any had been burning, next to and against and about the fence, along the north line of defendant's grounds at Disko? A. Three to four months.

"3d. Was any of this fence burned out? If so, how much, and how long had it been burned out, prior to the accident? A. 1st. Five to six rods. 2d. We do not know.

"4th. Was the colt pastured in the field separated from the right of way by this fence, and if so, how long had it been pastured there before the accident and by whom? A. Yes, about six months, by Robert Brannegan.

"5th. Did plaintiff have this field leased? A. Yes.

"6th. How long had the holes been burned in said fence, before the accident, and did plaintiff know this fact? A. We do not know.

"7th. Where had plaintiff been pasturing this colt for two weeks or more prior to the accident? A. In field north of and adjoining said railroad right of way.

"8th. Did plaintiff know that the fire had been burning and smouldering and partially destroying said fence for two months or more preceding this accident. A. Yes.

"9th. Was defendant possessed of a station ground at Disko, and if so, was there a saw-mill, elevator, water-tank, steam pump and well upon the same, in use on October 28th, 1890? A. 1st. Yes. 2d. Yes.

"10th. On October 28th, 1890, for what use was the defendant using the right of way bounded by the county line road on the west, the fence built by Mrs. Lukins on the north, a north and south line through the cattle pit on the east and the south line of the defendant's right of way on the south? A. From the county line on the west up to and including water tank, well and pump, was for public and railroad uses.

"11th. For what use on said day was the public using said portion of said right of way? A. Not known.

"12th. When was the colt killed--day, month and year? A. 28th October, 1890.

"13th. Did plaintiff know that said fire (if any) had repeatedly burned out said fence at different times within six months prior to October 28th, 1890? A. Yes.

"14th. What, if anything, on October 28th, 1890, was there to keep said colt from passing from the field in which it was, upon the right of way and track of defendant? A. Nothing.

"15th. Did plaintiff know, on October 28th, 1890, that said colt could pass upon said track from said field? A. Not known.

"16th. What was the fair market value of said colt at the time it was killed? A. Eighty-five dollars."

Appellant filed a motion for a new trial, and also a motion for judgment on the answers to the interrogatories, notwithstanding the general verdict. The court overruled each of said motions and rendered a judgment for appellee upon the general verdict. From this judgment appellant appeals, and assigns the following errors:

1st. The complaint does not state facts sufficient to constitute a cause of action, nor does either paragraph of said complaint.

2d. The court below erred in overruling appellant's demurrer to each paragraph of the complaint.

3d. The court below erred in overruling appellant's motion to require the jury to return answers more definite and specific to appellant's interrogatories.

4th. The court below erred in overruling appellant's motion for judgment on the answers of the jury to the special interrogatories, notwithstanding the general verdict.

5th. The court below erred in overruling appellant's motion for a new trial.

We think the complaint is sufficient, and that the demurrers were properly overruled.

Counsel for appellant insist that the complaint should contain an allegation to the effect that the place where the animal entered was a place where the company was required by law to maintain a fence, in addition to alleging the want or insufficiency of a fence, and cite several cases. Upon examination, however, we find that none of the cases are in point.

It has been repeatedly decided, and is now the settled law of this State, that the complaint against a railroad company, under the statute, for the killing of animals, is sufficient if it allege that the right of way was not securely fenced at the point where the animal entered upon the track and was killed, and if it is not the duty of the company to fence the road at the place in question, such fact is matter of defence, concerning which the complaint need not make any averment. Fort Wayne, etc., R. R. Co. v. Mussetter, 48 Ind. 286; Jeffersonville, etc., R. R. Co. v. Lyon, 55 Ind. 477; Jeffersonville, etc., R. R. Co. v. Lyon, 72 Ind. 107; Detroit, etc., R. R. Co. v. Blodgett, 61 Ind. 315; Terre Haute, etc., R. R. Co. v. Penn, 90 Ind. 284.

If the animal entered upon the right of way at a place where the company could not fence, the burden was on the defendant to prove that fact. Indianapolis, etc., R. W. Co. v. Lindley, 75 Ind. 426; Louisville, etc., R. W. Co., v. Hall, 93 Ind. 245; Fort Wayne, etc., R. R. Co. v. Herbold, 99 Ind. 91; Evansville, etc., R. R. Co. v. Mosier, 101 Ind. 597; Cincinnati, etc., R. W. Co. v. Parker, 109 Ind. 235, 9 N.E. 787; Chicago, etc., R. R. Co. v. Modesitt, 124 Ind. 212, 24 N.E. 986.

Counsel for appellant do not discuss the third error assigned, and for that reason we do not consider the same.

We think the court properly overruled appellant's motion for judgment on the answers of the jury to the special interrogatories notwithstanding the general verdict. In our judgment, said answers are not inconsistent with the general verdict.

Counsel for appellant call our attention specially to the 10th interrogatory and answer thereto, and insist that said answer shows that the company could not, or was not required to fence at the place where said colt entered upon the right of way. We do not so understand the answer. The colt entered upon the right of way at a point east of the water tank. The answer referred to is that "from the county line on the west up to and including water-tank, well and pump, was for public and railroad uses," it not being shown by said answer that east of the water-tank, at the place where said colt entered, the right of way could not be fenced.

It is only where the answers to the interrogatories are so inconsistent with the general verdict that the two can not...