The Toledo, St. Louis And Kansas City Railroad Company v. Jackson

• Decision Date: 15 December 1892
• Docket Number: 579
• Citation: 32 N.E. 793,5 Ind.App. 547
• Parties: THE TOLEDO, ST. LOUIS AND KANSAS CITY RAILROAD COMPANY v. JACKSON
• Court: Indiana Appellate Court

32 N.E. 793

5 Ind.App. 547

THE TOLEDO, ST. LOUIS AND KANSAS CITY RAILROAD COMPANY v. JACKSON

No. 579

Court of Appeals of Indiana

December 15, 1892

From the Grant Circuit Court.

Judgment affirmed.

C Brown, S. O. Bayless and C. G. Guenther, for appellant.

E. R Wilson and J. J. Todd, for appellee.

OPINION

NEW, J.

This action originated before a justice of the peace. Judgment was rendered for appellee, and appellant appealed.

In the circuit court a demurrer for want of facts was overruled, and the cause tried by a jury, who returned a verdict in favor of appellee, assessing his damages at the sum of one hundred dollars.

Over appellant's motion for a new trial the court rendered judgment on the verdict of the jury, and from said judgment this appeal is prosecuted.

The following errors are assigned:

1st. The court erred in overruling the demurrer to the complaint.

2d. The court erred in overruling the motion for a new trial.

Counsel for appellant do not discuss the question raised by the demurrer, and under the well settled rule of this court an error assigned but not discussed is considered as waived.

The motion for a new trial presents the following causes therefor:

1st. The verdict of the jury is not sustained by sufficient evidence.

2d. The verdict of the jury is contrary to law.

3d. The court erred in refusing to permit David Brown to testify for what purpose the switch was used, relative to shifting cars and freight trains.

4th. The court erred in refusing to allow R. S. Marshall to testify as to what the effect would be of putting in cattle-guards across any point crossing the side-track or main track where a switch runs parallel with it.

5th. The court further erred in refusing to permit R. S. Marshall to state what would be necessary to securely fence in the railroad track east of the crossing on the highway with the main track, so as to prevent animals, such as horses and the like, from going upon the right of way.

6th. The court erred in refusing to permit R. S. Marshall to testify that the placing of cattle-guards over the defendant's railroad track and side-track at the crossing, near Liberty Center, would be dangerous and unsafe and endanger the lives and limbs of the company's employees in the management and operation of its trains at that particular place.

7th. The court erred in permitting Charles Powell to testify as to the length of time the public highway that crosses the railroad where the animal was killed had been established.

8th. The court erred in permitting Charles Powell to testify as to whether or not there was anything that would prevent the construction of cattle-guards and wing fences north of the highway and at the place where the highway crosses the railroad.

9th. The court erred in permitting Daniel Brown to testify with reference to the distance a pile of ties lay from the north track of defendant's railroad.

10th. The court erred in giving instructions from No. 1 to No. 5, inclusive, offered by the plaintiff. The court erred in refusing to give instructions Nos. 5 and 9, which were asked to be given by the defendant.

11th. The court erred in giving instructions numbered 8 and 9, which were given by the court of his own motion.

It was agreed upon the trial that the plaintiff was the owner of the animal killed and that it was of the value of one hundred dollars; that said animal was struck and killed upon defendant's railway by a locomotive drawing a train of thirty cars, going in an easterly direction, and that it was killed at the point mentioned in the complaint; that it happened on the 1st day of June, 1890.

In substance, the following facts are disclosed by the evidence:

The railroad owned and operated by the defendant runs in a northeast and southwest direction through the village of Liberty Center, in Wells county, Indiana, the same being a regular station maintained by said company. Besides the main track there are two side-tracks, or switches, used by said defendant for the purpose of handling and operating its trains. There is a public highway running east and west through said village and crossing the main track and the switch on the south side of the main track at a point a short distance east of the east line of said village. Said company has a fence that joins the fence on the east side of the piece of land known as the Nicely lot, at a point nineteen feet north of the southeast corner of said lot, and runs in a northeasterly direction parallel with said railroad track, inclosing its right of way on the north side. Said Nicely lot is bounded on the south by the public highway, and the east line is the east line of said village, the southeast corner of said lot being about forty feet northwest of said crossing. There was no cattle-guard or wing fences to prevent animals from entering upon said company's right of way on the north side of said railroad, south of the point where said company's fence joins the Nicely fence.

On the day mentioned the appellee took two of his horses from his stable for the purpose of watering them, and the animal that was afterward killed (a gray mare) escaped from his stable and followed him. He led the two horses by means of halters, and with the gray mare loose and following, he took them along said highway east, across said company's track and on its right of way for the purpose of allowing said horses to graze; that after remaining there a short time he returned to the public highway, leading his two horses and said gray mare following; that when he had reached a point on said highway west of said railroad crossing about 50 or 60 feet, and said gray mare following him had reached a point on said highway about 30 feet west of said crossing a train came from the west, and when it approached them, the gray mare becoming frightened, turned and ran east along said highway until she reached the southeast corner of said Nicely lot, when she turned north around said southeast corner and on said company's right of way. She then ran in a northeasterly direction along said company's track a short distance, when she turned on the main track and ran along in front of said engine and train until the same finally ran against and killed her, about eighteen hundred feet northeast of said crossing.

We learn from the foregoing facts that said animal entered upon said company's right of way at a place where the same was not fenced.

The burden was on the defendant to show that the company could not construct and maintain a cattle-guard and wing...