The Terre Haute And Indianapolis Railroad Co. v. Schaefer

• Decision Date: 08 June 1892
• Docket Number: 529
• Citation: 31 N.E. 557,5 Ind.App. 86
• Parties: THE TERRE HAUTE AND INDIANAPOLIS RAILROAD COMPANY v. SCHAEFER
• Court: Indiana Appellate Court

31 N.E. 557

5 Ind.App. 86

THE TERRE HAUTE AND INDIANAPOLIS RAILROAD COMPANY v. SCHAEFER

No. 529

Court of Appeals of Indiana

June 8, 1892

From the Cass Circuit Court.

Judgment affirmed.

J. G Williams, S. T. McConnell and A. G. Jenkins, for appellant.

J. C Nelson and Q. A. Myers, for appellee.

OPINION

BLACK, J.

In an action originating before a justice of the peace, brought by the appellee against the appellant to recover the value of certain cattle run against and killed by the appellant's locomotive and train of cars, it being alleged in the complaint that the cattle entered the appellant's "track and right of way at a place where the same was not fenced," judgment was recovered by the appellee in the court below on appeal.

The question as to the sufficiency of the complaint after verdict is presented, and it is contended on behalf of the the appellant that it should have been alleged in the complaint: 1. That the place where the cattle entered upon the appellant's track and were killed was not a public highway. 2. That the cattle were rightfully at large. 3. That the appellant had negligently failed and omitted to fence its road at the place where the cattle entered upon the track and were killed. 4. That it was a place where the appellant could fence its track and was bound to do so.

The complaint did not need any such averments.

It is well settled that in such an action against a railroad company to recover damages for killing or injuring the plaintiff's animal by running against it 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 alleged or shown that such place was not a public highway, or that the railroad company could have fenced its road at such place, or that it was bound to do so. If for any reason the railroad company could not have fenced at such place properly, or was not bound to do so, that would be matter of defence to be shown by the railroad company. Jeffersonville, etc., R. R. Co. v. Peters, 1 Ind.App. 69, 27 N.E. 299; Louisville, etc., R. W. Co. v. Hughes, 2 Ind.App. 68, 28 N.E. 158; Pennsylvania Co. v. Lindley, 2 Ind.App. 111, 28 N.E. 106; Louisville, etc., R. R. Co. v. Hart, 2 Ind.App. 130, 28 N.E. 218.

It is also well settled that in such a case the railroad company is liable for such killing or injuring without reference to the question as to its negligence or as to the plaintiff's contributory negligence. Jeffersonville, etc., R. R. Co. v. Ross, 37 Ind. 545 (549); Louisville, etc., R. W. Co. v. Cahill, 63 Ind. 340; Louisville, etc., R. W. Co. v. Whitesell, 68 Ind. 297; Welty v. Indianapolis, etc., R. R. Co., 105 Ind. 55, 4 N.E. 410.

In such a case it is immaterial whether or not the animal was at large rightfully by reason of an order of the board of...