The Louisville, New Albany and Chicago Railway Company v. The Consolidated Tank Line Company

• Decision Date: 18 February 1892
• Docket Number: 301
• Citation: 30 N.E. 159,4 Ind.App. 40
• Parties: THE LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY v. THE CONSOLIDATED TANK LINE COMPANY
• Court: Indiana Appellate Court

30 N.E. 159

4 Ind.App. 40

THE LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY v. THE CONSOLIDATED TANK LINE COMPANY

No. 301

Court of Appeals of Indiana

February 18, 1892

From the Tippecanoe Superior Court.

Judgment affirmed with costs.

E. C Field and J. F. McHugh, for appellant.

J. H Adams, for appellee.

OPINION

NEW J.

The appellee brought this action to recover the value of a horse, which, it is alleged, went upon the appellant's railway where it was not fenced, and was killed by one of the appellant's trains.

The complaint, omitting the caption and formal conclusion, is as follows:

"The Consolidated Tank Line Company, plaintiff, complains of the Louisville, New Albany and Chicago Railway Company, defendant, and says that the defendant is, and for more than five years last past has been, a railway corporation operating a line of railway from New Albany, in the State of Indiana, to the city of Chicago, in the State of Illinois, which said line of railroad passes through Tippecanoe county, in said first named State. That said railroad, immediately north of the city of La Fayette, in said county, and extending for a distance of two miles and more northward, during all said period of time, was not and is not now fenced in, and said railroad and its right of way is accessible to cattle, horses, and other domestic animals. That heretofore, to wit: on the 28th day of March, 1889, a horse belonging to the plaintiff, of the value of two hundred and fifty dollars, got upon said railroad and its right of way at the point aforesaid, immediately north of the city of La Fayette, where said railroad was not fenced, and said horse, while so on said railroad, was run against and over by a locomotive of the defendant, and so injured as to be utterly worthless, to the damage of the plaintiff $ 250, which is due and unpaid. That the point where said horse was struck and run over, was in said county of Tippecanoe."

The appellant moved the court to require the complaint to be made more specific, to wit, "to state at what particular place and point upon the defendant's railroad and right of way, the horse belonging to the plaintiff entered upon it."

This motion was overruled, as was also a demurrer to the complaint for want of facts. A general denial of the complaint was then filed, the cause submitted to a jury for trial, and a verdict returned for the appellee for the sum of $ 200.

Over a motion by the appellant for a new trial, judgment was given for the appellee upon the verdict.

The appellant has assigned as error the overruling of the motion to make the complaint more specific, the overruling of the demurrer to the complaint, and the overruling of the motion for a new trial.

We do not think the court erred in overruling the motion to make the complaint more specific. It is alleged in the complaint that the horse entered upon the railroad immediately north of the city of La Fayette. This was sufficiently specific. We can see no reason why the place of entry should be more particularly stated.

The only objection urged against the sufficiency of the complaint, upon demurrer, is, that it is vague and uncertain. In what respect it is vague or uncertain, except as suggested by the motion to make more specific, is not pointed out. The complaint, in our opinion, states a cause of action. The demurrer to it was properly overruled.

Of the grounds assigned for a new trial, none are discussed by counsel, except those relating to the refusal of the court to give instruction numbered nine, asked by the appellant, and the giving by the court, on its own motion, instructions numbered eleven, twelve, and thirteen.

It is shown by the record that the railroad runs north and south at the point where the horse entered upon its track. On the west side of the railroad are enclosed lands belonging to the Northern Lake Ice Company, and which have a gateway on the side next to the railroad. Between said lands and the railroad is a roadway with no fence between it and the railroad. On the east side of the railroad, and opposite the lands...