The President of the Terre Haute & Richmond Railroad Co. v. Smith

• Decision Date: 28 May 1861
• Citation: 16 Ind. 102
• Court: Indiana Supreme Court
• Parties: The President, &c. of the Terre Haute and Richmond Railroad Company v. Smith

16 Ind. 102

The President, &c. of the Terre Haute and Richmond Railroad Company v. Smith

Supreme Court of Indiana

May 28, 1861

APPEAL from the Putnam Common Pleas.

The judgment is reversed, with costs. Cause remanded for further proceedings, in accordance with this opinion.

H Secrest, S. Turman and J. P. Usher, for the appellant.

OPINION

Perkins J.

Smith sued the Terre Haute and Richmond Railroad Co., under the statute, for the value of a horse killed upon the track of her road, by a locomotive.

The defendant answered, that on the day of -----, 1851, the plaintiff owned a tract of land, upon which he then resided and still resides; that the defendant located her road across said track, and appropriated a strip of it one hundred feet wide; that to settle the amount of damage for so doing, the company and Smith referred the matter to the arbitrament of Reuben Hagan, and two others, who awarded to Smith, $ 500; $ 200 of which were for the land appropriated, and $ 300 of which were for the making and keeping up suitable fences; that both parties agreed to the award, and Smith promised, if the money was paid, to erect and maintain the fences; that the $ 500 was all paid by the company; that Smith neglected to erect good and suitable fences, but turned his stock upon the ground adjoining the road, one animal of which, the horse in question, passed over the fence built by Smith, on to the railroad track, and in the night time, was run over, without fault of the company, and killed.

Reply in denial. Jury trial. Judgment for Smith. Motion for a new trial denied.

The answer in the cause was substantially proved. The Court instructed the jury "that if they were satisfied from the evidence, that the horse of the plaintiff was killed by the locomotive and cars of the defendant; and that said railroad track was not, at the time of the killing, securely fenced in, and such fence properly maintained by said company, so as to exclude stock therefrom, then they ought to find for the plaintiff the value of the horse, without regard to the question of negligence."

This instruction was not within the issue tried. That issue was upon the truth of the answer; and if that issue was material if the answer contained facts constituting a defense, as it was proved, the defendant should have succeeded. We think the answer did contain facts constituting a good defense. As the plaintiff had been paid for building the fences, and it was his own wrong that they were insufficient, and he voluntarily exposed his horse to the destruction that fell upon it, we think, as between him...