The Louisville, Evansville And St. Louis Railroad Co. v. Hart
| Decision Date | 24 June 1891 |
| Docket Number | 255 |
| Citation | 28 N.E. 218,2 Ind.App. 130 |
| Parties | THE LOUISVILLE, EVANSVILLE AND ST. LOUIS RAILROAD COMPANY v. HART |
| Court | Indiana Appellate Court |
From the Spencer Circuit Court.
Judgment affirmed, with costs.
J. B Handy, C. W. Armstrong, H. M. Logsdon, W. C. Mason, H. Kramer and J. B. Cockrum, for appellant.
S. B Hatfield and J. A. Hemenway, for appellee.
CRUMPACKER J. REINHARD, J., took no part in the decision of this case.
This action was brought by Hart against the railroad company to recover damages for the killing of nine head of cattle and injuring six others.
The complaint was originally in four paragraphs, and a demurrer was filed to each paragraph and overruled.
An answer consisting of two paragraphs was filed, and upon motion of the plaintiff the second paragraph was struck out.
Before the trial the first paragraph of complaint was withdrawn.
The cause was tried by a jury, and a verdict returned in favor of the plaintiff.
A motion for a new trial was filed and overruled, and judgment rendered upon the verdict.
The defendant appeals, and assigns for error:
1. The overruling of the demurrer to each paragraph of complaint.
2. Sustaining the motion to strike out the second paragraph of answer.
3. Overruling the motion for a new trial.
The second and third paragraphs of complaint are statutory causes of action, based upon the alleged failure of the railroad company to securely fence its railroad at a point where it ought to have been fenced, and that appellee's cattle entered upon the railroad at that point and were killed and injured.
It is urged against the ruling of the court upon the demurrer to these paragraphs that they do not negative the exceptions in the law to the general duty of railroad corporations to fence their roads. This is not required, as the exceptions are matters of defence.
Where a complaint charges an injury to animals by a railroad company by reason of its failure to fence its track at a point where it ought to have been fenced, this will ordinarily be held sufficient. Evansville, etc., R. R. Co. v. Tipton, 101 Ind. 197.
There was no error in overruling the demurrer to either of these paragraphs.
It is alleged in the fourth paragraph that the company, by its servants and agents, purposely and wilfully ran its locomotive engine and train upon and against the appellee's cattle, thereby killing and injuring them.
It is insisted that this paragraph is defective because it states conclusions and not facts; that the facts connected with the injury should have been detailed so the court could have declared as a matter of law whether or not the injury was wilfully inflicted.
In the case of Gregory v. Cleveland, etc., R. R. Co., 112 Ind. 385, 14 N.E. 228, the court said: "It is only necessary to charge, in a complaint which seeks redress for a wilful injury, that the injurious act was purposely and intentionally committed, with the intent wilfully and purposely to inflict the injury complained of."
While the paragraph of complaint under consideration does not expressly charge the purpose and intent to inflict the injury complained of, it does charge the wilful commission of an act which would necessarily and inevitably result in such injury.
An averment of the wilful and intentional commission of an act which according to nature and experience will necessarily produce a certain injury, is equivalent in civil pleading to the averment of a wilful commission of the injury. Measured by this rule the fourth paragraph is sufficient.
The first paragraph of answer is the general denial, and the second averred, in substance, that the appellee's cattle were driven by his servants upon and along the right of way for about a mile to a point where the adjoining land was uninclosed and unimproved, and through which the company was not required to fence its track, and when the train which inflicted the injury approached, the cattle were driven off the right of way upon such uninclosed land, where they were being herded, and at the approach of the train they became frightened and uncontrollable and escaped from their keeping and ran upon the railroad from such uninclosed land and were killed and injured as complained of.
There are a number of reasons why this special answer was insufficient. It assumed to answer the entire complaint, and it is manifest that it contains nothing which would amount to a defense of the charge of wilful injury. Then it is based upon the assumption that the company was not bound to fence its track through uninclosed lands, which is shown to be erroneous in the consideration of another question in this opinion. Besides this, the general denial put in issue the question of the company's duty to fence its road at the point where the animals entered upon it, and every other question...
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Louisville v. Hart
... ... A. Hemmenway, for appellee.CRUMPACKER, J.This action was brought by Hart against the railroad company[28 N.E. 219]to recover damages for the killing of nine head of cattle and injuring six ... ...