The Louisville, New Albany And Chicago Railway Co. v. Hughes

• Decision Date: 13 June 1891
• Docket Number: 213
• Citation: 28 N.E. 158,2 Ind.App. 68
• Parties: THE LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY v. HUGHES
• Court: Indiana Appellate Court

28 N.E. 158

2 Ind.App. 68

THE LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY v. HUGHES

No. 213

Court of Appeals of Indiana

June 13, 1891

From the Montgomery Circuit Court.

Judgment affirmed.

R. C Huston, E. C. Field and A. D. Thomas, for appellant.

H. M Perry, for appellee.

OPINION

BLACK, J.

The appellee sued to recover for injury to his two cows, caused by their being run against by the appellant's locomotive and cars.

The complaint was in two paragraphs. In the first paragraph the appellee relied upon the alleged fact that the railroad was not securely fenced in where the stock entered upon it.

The assignment that the court erred in overruling the appellant's demurrer to the second paragraph of the complaint is pressed in argument. There are in this paragraph some allegations of negligence, and the appellant insists that it should be treated as a common law count for injury through negligence. If the pleading should be so construed, the objection urged by counsel, that there is no averment that there was no fault or negligence on the part of the appellee, would be well taken. It is said, however, by counsel for appellant, that the court based its ruling upon the ground that the second paragraph was good as a complaint in the statutory action based upon the failure to fence; and upon an examination of the record it appears that the court, in its instructions, and in its rulings throughout the trial, treated both paragraphs of the complaint as based upon a failure to fence, and that the theory of the case, as tried and determined, did not involve the question of negligence. The theory upon which the cause proceeded in the trial court should be the theory upon which the action of that court is tested on appeal.

It is also contended by counsel that the second paragraph is bad as a complaint based on failure to fence. In this paragraph it is alleged, among other matters, that the appellant fenced along the west side of its railway, through a certain section of land in Montgomery county, and left a gap, or opening, twelve or fourteen feet wide in the fence, at a certain place, and "failed to notify the owner of the land opposite said opening, and for whose benefit said opening was left without any request by said owner of said land that said opening should be so left, that defendant had built said fence and had left said opening;" that on, etc., the cows passed through said opening in said fence, from a highway on the west, and abutting appellant's right of way, etc.

Concerning this portion of the complaint it is urged by counsel that if the railroad company was obliged to leave this opening, there was no need of a direct request from the land-owner; also, that the pleading should have negatived a request of the tenant that the opening be left in the fence.

Appellant has assigned, also, as error, the overruling of its motion for a new trial, and it will be convenient to consider the questions which appellant seeks to present concerning the complaint in connection with the question as to the sufficiency of the evidence.

The railroad, running north and south, is crossed by a highway, on which the cattle came from the east, having escaped from an inclosure on the land of their owner, the appellee, a mile or two to the northeastward. From the west side of this crossing a highway runs south along the west side of the appellant's right of way, and abutting upon it. Between the right of way and this highway a fence, constructed by the appellant, extended southward from said public crossing. In constructing this fence appellant had left a gap of sufficient width for a gate for a wagon-way, at a point about one-half a mile south of said public crossing. This gap, or gateway, had no gate, and was open at the time of the injury.

The animals were injured about midway between said public crossing and said opening in said fence.

From said public crossing, and extending southward, there was a fence along the east side of the right of way. At a point opposite said opening, this fence extended between the right of way and the west side of certain farmland owned by Mrs. Rich and Mrs. Elliott, and occupied by their brother, Captain James H. McClelland, who lived on land abutting on the east side of the railroad, and on said east and west highway, and who had occupied said land owned by his sisters for about eleven years, paying no rent therefor, but paying the taxes on the land, and having control of it for his said sisters, getting the land to use for keeping up the taxes. This fence on the east side of the railroad had been constructed by the appellant less than a year before the injury, but there had been a rail fence there before that time, and there had been a private way out from this land across the railroad to said opposite highway, which private way had been in use many years, during a part of which time there had been a gate there in said east fence, and a part of the time the gateway had been filled up with rails. When the appellant put up the new fence here it left a gateway therein, upon a written request delivered to appellant by said McClelland that a private crossing over and across said railroad be opened by the appellant for the sole use and accommodation of "the undersigned;" the name of one of said landowners, followed by "et al.," being added at the end of the writing.

Afterward, in constructing the fence on the west side of the railroad, appellant left said opening therein opposite said gateway on the east side, without any arrangement for a private crossing having been made, until after the fence on the west side had been put up, and said opening had been left therein, except the previous request for a private crossing made when the east fence was constructed. But after the construction of the west fence, and the leaving of said opening therein, and before the injury to the stock, said McClelland signed, in like manner, a similar written request handed to him by an employee of the appellant. Said land-owners never requested said McClelland to have the openings left in the fences at said crossing, and he testified that he had no authority from the land-owners to make such request, but did it for his own convenience.

There were no cattle-guards, or wing fences, at said public crossing. The first entrance of the cattle upon the railroad was not seen by any of the witnesses. It might have been found, upon the evidence, that they first entered at the public crossing. There was evidence introduced by the appellant, and not contradicted, that upon the approach of a train from the north, which passed an hour or two before the injury, which was done by a train from the south, the cattle ran out from the right of way through said opening in the west fence into said adjoining highway, and that they returned through said opening to the right of way.

In an action against a railroad company to recover damages for injuring or killing the plaintiff's animal by the defendant's locomotive and cars, the complaint alleging that the railroad was not fenced at the place where the animal entered upon it, it is not necessary that it be also alleged, or shown, that the railroad could properly have been fenced at such place. If it could not properly be fenced there, this is matter of defence, and the burden of proving it is on the defendant. Louisville, etc., R. W. Co. v. Kious, 82 Ind. 357; Terre Haute, etc., R. R. Co. v. Penn, 90 Ind. 284; 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.

Under our law, as it was before the enactment of the statutes of 1885 upon the subject of railroad fences and crossings, a railroad company in an action against it for the killing, or the injury, of a domestic animal, was held to be under the same liability for failure to keep a private crossing closed, as for failure to keep its track securely fenced in at any other place where it was proper to do so, where the question did not arise between the railroad company and a person for whose benefit the private crossing was maintained. Wabash R. W. Co. v. Williamson, 104 Ind. 154, 3 N.E. 814.

This was so held of a private way leading across the railroad from an adjoining public highway. Indianapolis, etc., R. W. Co. v. Thomas, 84 Ind. 194.

The act of April 8th, 1885 (Acts of 1885, p. 148) provided that "owners of tracts of land separated by the right of way of a railroad company may * * construct and maintain wagon and driveways over and across such right of way leading from one of such tracts to another on the opposite side of such right of way at any point most convenient to such owner," etc.; that "when such railroad is fenced on one or both sides at the point where such way is constructed such owner shall erect and maintain substantial gates in the line of such fence or fences across such way, and keep the same securely locked, when not in use by himself or employees;" and that "if animals are killed or injured on the track of such railroad by the cars or locomotives thereof, the company owning or operating such railroad, shall not be liable...