The Jeffersonville, Madison And Indianapolis Railroad Co. v. Peters
| Decision Date | 03 April 1891 |
| Docket Number | 34 |
| Citation | 27 N.E. 299,1 Ind.App. 69 |
| Parties | THE JEFFERSONVILLE, MADISON AND INDIANAPOLIS RAILROAD COMPANY ET AL. v. PETERS |
| Court | Indiana Appellate Court |
From the Clark Circuit Court.
Judgment affirmed, with costs.
S Stansifer, for appellants.
G. H Voight, for appellee.
The appellee brought this action before a justice of the peace for the value of a mare alleged to have been injured by a locomotive running on the railroad of appellants within the corporate limits of the city of Jeffersonville. The case was appealed to the circuit court where upon issues joined it was submitted for trial to the court on an agreed statement of the facts. The trial court found in favor of the plaintiff who is the appellee here. A motion for a new trial was made by the appellants and overruled by the court, and from that decision this appeal is prosecuted by them.
The only subject presented for our consideration is the correctness of the decision of the lower court in overruling the motion for a new trial.
The animal injured went upon the track of appellants' railroad at a point within the city limits where the road was not fenced. The contention of appellants is:
First. That the acts of April 8th and April 13th, 1885, repeal the law making railroad companies liable for injury to stock within the corporate limits of a city.
Second. That even if this were not so there would still be no liability, because at the particular place where the animal walked upon the track and was struck the appellants were not legally bound to maintain a fence.
The first proposition has been decided adversely to the claim of the appellants in the case of Jeffersonville, etc., R. R. Co. v. Dunlap, 112 Ind. 93.
This is fully conceded by appellants' counsel in his brief, but he asks the Supreme Court, to which this cause had been appealed and from which it was transferred to this court under the act of February 28th, 1891, to reconsider the questions there decided and overrule that case. We have examined the question discussed and decided in that case and being fully satisfied of the correctness of the conclusions there reached are unwilling to make a ruling in conflict therewith. We, therefore, pass to the consideration of the second proposition.
The liability of the appellants in this case depends, of course, upon whether they were under legal obligation to fence the track at the point where the animal entered upon the same.
We fully agree with the counsel for appellee that the burden of proof is upon the appellants to show that the situation and surroundings are such as to bring them within one of the exceptions to the rule which requires them to fence. Cincinnati, etc., R. W. Co. v. Parker, 109 Ind. 235, 9 N.E. 787; Fort Wayne, etc., R. R. Co. v. Herbold, 99 Ind. 91. That the courts do recognize many exceptions to this general rule, although the statute itself does not, in terms, contain any of these, is well settled by authority. Fort Wayne, etc., R. R. Co. v. Herbold, supra. The general character of these exceptions and the authorities in support thereof are elaborately discussed in the able opinion of the court in that case, and we quote so much of that opinion as is illustrative of the point.
The question is, have the appellants brought themselves within the scope of either of these exceptions?
Whether a company is or is not obliged to fence its road at a given point is a question of law and not of fact. 1 Thompson Neg., p. 522, and authorities cited.
Where therefore, the point at which the animal entered upon the track and its...
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Jeffersonville v. Peters
... ... , cited the following cases to show that defendant need not fence its switch limits: Railroad Co. v. Oestel, 20 Ind. 231; Railroad Co. v. Suman, 29 Ind. 40, 42; Railroad Co. v. Parker, Id. 471, ... ...