The Fort Wayne, Cincinnati and Louisville Railroad Company v. O'Keefe

• Decision Date: 29 March 1892
• Docket Number: 250
• Citation: 30 N.E. 916,4 Ind.App. 249
• Parties: THE FORT WAYNE, CINCINNATI AND LOUISVILLE RAILROAD COMPANY v. O'KEEFE
• Court: Indiana Appellate Court

30 N.E. 916

4 Ind.App. 249

THE FORT WAYNE, CINCINNATI AND LOUISVILLE RAILROAD COMPANY v. O'KEEFE

No. 250

Court of Appeals of Indiana

March 29, 1892

From the Rush Circuit Court.

Judgment affirmed.

F. J Hall, R. C. Bell and S. R. Morris, for appellant.

J. F Joyce, B. L. Smith and C. Cambern, for appellee.

OPINION

REINHARD, J.

Action by the appellee against the appellant for damages for the killing of a horse upon appellant's railroad track. There was a demurrer to the complaint, which was overruled, and upon the filing of an answer of general denial the cause was tried by a jury, resulting in a verdict and judgment for the appellee for the value of the horse. The jury with their general verdict also returned answers to interrogatories. The appellant moved for a judgment notwithstanding the verdict, but the court overruled the motion, as also the appellant's motion for a new trial. All these rulings are properly assigned as error. Among other causes assigned in the motion for a new trial is that of the insufficiency of the evidence to sustain the verdict, and to the solution of this question we will first address ourselves. The appellee's horse, which was killed, was being pastured in a field north of Hamilton Station, alongside of the appellant's railroad track. The evidence tends to prove that the horse came out of the field through an opening in the fence, and walked on to the railroad track, going south, when the appellant's train came from the north and drove the horse ahead of it on to a tressel-work, which formed the approach to a bridge upon which it fell. There is evidence that the trainmen were doing all in their power to turn the horse off the track so that the train could pass by it without inflicting any injury, but that the colt, having become frightened, ran up the grade on to the trestle where it became lodged. The train was stopped and some of the appellant's employees, in their efforts to get the horse off the track so that the train could pass, caused it to fall over the trestle upon the ground. Upon examination it was found that the horse had sustained fatal injuries, and it died some days afterwards.

It is not claimed that there was any evidence of contact by the locomotive or cars with the horse. The killing was the result either of the fall upon the tressel or the fall over the same on to the ground. It is well settled that under the statutes prior to the law of 1885 there could be no liability of a railroad company for the death or injury of an animal unless the same was killed or injured by an actual touching by the engine or cars or other carriages. Indianapolis, etc., R. W. Co. v. McBrown, 46 Ind. 229; Louisville, etc., R. W. Co. v. Smith, 58 Ind. 575; Baltimore, etc., R. W. Co. v. Thomas, 60 Ind. 107; Jeffersonville, etc., R. R. Co. v. Downey, 61 Ind. 287; Croy v. Louisville, etc., R. W. Co., 97 Ind. 126; Louisville, etc., R. W. Co. v. Thomas, 106 Ind. 10, 5 N.E. 198.

The enactment of 1885 has not changed the statutory liability. Jeffersonville, etc., R. R. Co. v. Dunlap, 112 Ind. 93. If, therefore, the appellee can recover in this case, it must be because of the appellant's common law liability for negligence. New Albany, etc., R. R. Co. v. McNamara, 11 Ind. 543; Toledo, etc., R. W. Co. v. Milligan, 52 Ind. 505; Indianapolis, etc., R. W. Co. v. McBrown, supra; Pennsylvania Co. v. Lindley, 2 Ind.App. 111, 28 N.E. 106.

At common law railroad companies are not bound to fence their tracks, and where the owner of the animals permits them to run at large in the vicinity of a railroad track, in the absence of an order from the board of commissioners permitting the same, he is guilty of such negligence as will prevent him from recovering if any such animals stray upon the track and are killed or injured, unless such killing or injuring was wilful. Lyons v. Terre Haute, etc., R. R. Co., 101 Ind. 419; Klenberg...