Wabash Railroad Company v. Williamson

• Decision Date: 10 December 1891
• Docket Number: 239
• Citation: 29 N.E. 455,3 Ind.App. 190
• Parties: THE WABASH RAILROAD COMPANY v. WILLIAMSON
• Court: Indiana Appellate Court

29 N.E. 455

3 Ind.App. 190

THE WABASH RAILROAD COMPANY v. WILLIAMSON

No. 239

Court of Appeals of Indiana

December 10, 1891

From the Porter Circuit Court.

Judgment affirmed, with costs.

C. B Stuart, T. A. Stuart and W. V. Stuart, for appellant.

E. D Crumpacker and S. C. Spencer, for appellee.

ROBINSON C. J. CRUMPACKER, J., was absent.

OPINION

ROBINSON, C. J.

The complaint in this action was in two paragraphs. The material facts alleged in the first paragraph were: That the defendants, the Chicago and Atlantic Railway, the Wabash Western Railway Company and the Wabash Railroad Company, were, at the time of the commission of the grievances complained of, railway corporations organized and existing under the laws of the State of Indiana; that at said time the Chicago and Atlantic Railway Company was the owner of a line of railroad extending from the city of Chicago through and across the counties of Lake and Porter, in Indiana, and thence on eastward; that the defendant the Wabash Western Railway Company at the same time had a lease of said line of the Chicago and Atlantic Railway Company, by the terms of which said Wabash Western Railway Company had the right to run its locomotives, engines and trains of cars over said railroad; that on the 27th day of June, 1888, while said railroad was so run and operated by the said Wabash Western Railway Company (the same being at the same time also used and operated by the Chicago and Atlantic Railway Company), nine head of cattle owned by the plaintiff entered upon said railroad, in said Porter county, at a point where the same ought to have been securely fenced but was not, and while upon said railroad were run upon, against and over by a train of cars owned and operated by the defendant the Wabash Western Railway Company, whereby the said cattle were injured and killed, of the value, etc.; that said cattle entered upon said railroad and were killed without fault or negligence on the part of the plaintiff; that subsequently the Wabash Railroad Company, by purchase or consolidation (plaintiff being unable to state), succeeded to the rights, privileges and franchises and to the lease of said Wabash Western Railway Company from the Chicago and Atlantic Railway Company, as aforesaid, whereby said Wabash Railroad Company became and was liable for the damage to plaintiff's said cattle, as the successor by purchase or consolidation of said Wabash Western Railway Company, etc.

The second paragraph of the complaint is substantially the same as the first, except it charged that the Wabash Western Railway Company subsequently changed its corporate name to that of the "Wabash Railroad Company," and that it was the duty of both of said defendants to keep said line of said railroad company securely fenced through said county.

The appellant, the Wabash Railroad Company, appeared to the action, and filed a motion to require the appellee to make each paragraph of the complaint more specific, which motion was overruled, and exception taken.

The appellant then demurred to each paragraph of the complaint, which was overruled, and exception taken.

The appellant, the Wabash Railroad Company, answered in six paragraphs:

1. General denial.

2. That the appellant, the Wabash Railroad Company, was the successor of the Wabash Western Railway Company; that the appellee's cattle were killed by a train of the Wabash Western Railway, which the Chicago and Atlantic Railway Company authorized to run upon its road in Indiana, but that said cattle entered upon the track of the Chicago and Atlantic Railway from the premises of one Burk, through which its said road passes, and upon whose lands said cattle were trespassing, and that they so came on said railway through a private gate in the land-owner's fence, which gate said Burk provided for his own convenience, and which was left open not by the appellant, but by persons to the appellant unknown.

3. Admits that appellee's cattle entered and were killed upon the track of the Chicago and Atlantic Railway Company, and by a Wabash Western Railway train, which the Chicago and Atlantic Railway Company authorized to run thereon; that the appellant is the successor of the Wabash Western Railway Company; that said killing was caused by the locomotive or some car of said Wabash Western Railway train, etc; but that said cattle were trespassing upon the lands of one Burk, and from thence entered upon the Chicago and Atlantic Railway's track at a point on said Burk's premises where the Chicago and Atlantic Railway Company had and maintained a switch or siding for the delivery and receipt of freight, and through an opening in the railway fence used by persons who shipped and received freight from and upon said switch, which opening was necessary for said purpose, and was put in by said Burk for his own convenience and accommodation, and under his direction; said cattle having so entered on said right of way were killed opposite or near the said switch or side-track, and it was a place where the Chicago and Atlantic Railway Company were not by law required to fence their road, without interfering with the free use of said switch by the public, for whose convenience it was put in.

4. The Wabash Railroad Company was a corporation, organized under the laws of the State of Indiana, and engaged in operating and controlling lines of railroad in and through a portion of said State, but that said Wabash Railroad did not own, operate or control a line of railroad in said State in June, 1888, at the time of the injuries alleged in the complaint.

5. Said Wabash Railroad Company was a corporation under the laws of Indiana, and engaged in operating and controlling lines of railroad through a portion of said State, but no part of said railroad so operated, etc., was in said county of Porter; that at the time of the happening of the injuries complained of the Wabash Western Railway Company was running its trains over a line of railroad through said county of Porter, known as the "Chicago and Atlantic Railway," which was owned and operated by said last-named company, and said trains of said Wabash Western Railway were governed, controlled and operated by the said Chicago and Atlantic Railway Company, its officers, agents, servants and employees, and said Wabash Western trains were governed by the rules and regulations of said Chicago and Atlantic Railway Company; that at the place on said Chicago and Atlantic Railway Company where said stock entered upon the right of way of said railway company and were killed and injured was a private gate, or where bars had been placed in the fence along said right of way for the convenience of the land-owners, and with which gate, bars or fence, or the keeping of same closed or in secure condition the Wabash Railroad, or its predecessors, had nothing whatever to do, and no control or power over.

6. This paragraph contained substantially the same allegations as the other paragraphs as to the organization of the Wabash Railroad Company, and being the successor of the "Wabash Western Railway;" that no part of said Wabash Western Railway was in the county of Porter; that at the time of the happening of the injuries complained of "The Chicago and Atlantic Railway was a corporation owning, operating and controlling a line of railway through said county of Porter; that the said Wabash Western Railway and the Chicago and Atlantic Railway Company had a contract under the terms of which said Wabash Western Railway was run over and upon the lines owned, etc., by said Chicago and Atlantic Railway Company, and said trains were controlled, managed, etc., by said last-named railway company, its officers, agents, servants, etc., and were governed by the rules and regulations of said railway company; that neither the appellant nor the Wabash Western Railway Company had lines of railroad of their own, nor in their names, in said Porter county, nor was it the lessee, assignee or receiver of any line of railway in said county; that by the terms of said contract it was provided, among other things, that in the case of killing of stock not in transit, caused by the operation of the trains of the Wabash Western Railway over the Chicago and Atlantic Railway, such claims should be adjusted by the proper officers of the Chicago and Atlantic Railway Company.

The appellee demurred to the second, third, fourth, fifth, and sixth paragraphs of appellant's answer, which was sustained as to the second, fourth and fifth paragraphs, and overruled as to the third and sixth paragraphs, and exception taken.

The appellee filed a reply of general denial, and under the issues thus formed the cause was submitted to the court for trial. At the request of both parties the court made a special finding of facts, and stated its conclusions of law thereon. And under the finding of facts and conclusions of law thereon the court found for the appellee, and the appellant excepted separately and severally to each conclusion of law. Thereupon appellant filed a motion for a venire de novo; also a motion for a new trial, for judgment upon the special findings notwithstanding the conclusions of law, and in arrest of judgment, in the order mentioned; and each motion was overruled and exception taken, and the court thereupon rendered judgment upon the special finding of facts and conclusions of law, in favor of the appellee.

Several alleged errors are assigned as causes for the reversal of the judgment.

The first, second, and fourth errors assigned assail the ruling of the court below in overruling the demurrer to the complaint, and in overruling the motion to require the appellee to make each paragraph in the complaint more specific.

It is contended by the appellant that the d...