Wabash, S. L. & P. R. Co. v. Nice

• Decision Date: 19 December 1884
• Docket Number: 11,918
• Citation: 99 Ind. 152
• Parties: The Wabash, St. Louis and Pacific Railway Company v. Nice
• Court: Indiana Supreme Court

99 Ind. 152

The Wabash, St. Louis and Pacific Railway Company v. Nice

No. 11,918

Supreme Court of Indiana

December 19, 1884

From the Miami Circuit Court.

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

J. L Farrar, J. Farrar and W. C. Farrar, for appellee.

OPINION

Bicknell C. C.

The appellee brought this suit before a justice of the peace to recover damages from the appellant for a cow killed by the cars of the appellant on its railway.

The complaint before the justice was in one paragraph, and he rendered a judgment for the plaintiff by default.

In the circuit court the defendant demurred to the complaint for want of facts sufficient. The demurrer was overruled. The plaintiff then filed a second paragraph of complaint, and the defendant answered the entire complaint by a general denial. The issues were submitted to a jury for trial, and the plaintiff having introduced his evidence, the defendant demurred to it. The court overruled the demurrer, and assessed the plaintiff's damages at $ 60.

The defendant's motion for a new trial was overruled, and judgment was rendered on the assessment. The defendant appealed. The errors assigned are:

1. Overruling the demurrer to the complaint.

2. That the complaint does not state facts sufficient.

3. Overruling the demurrer to the evidence.

4. Overruling the motion for a new trial.

There was no error in overruling the motion for a new trial. The only reason alleged for the new trial is error of the court in overruling the demurrer to the evidence. This is not a valid reason for a new trial; it belongs to the assignment of errors.

As to the first specification of error, viz., overruling the demurrer to the complaint, there was no demurrer to the complaint; there was a demurrer to the first paragraph only. The plaintiff claims that the first paragraph of the complaint does not state that the road was not securely fenced. In this the appellant is mistaken. The averment in the complaint is, that where the cow went on the track, the railroad was not fenced and could not be. Louisville, etc., R. W. Co. v. Argenbright, 98 Ind. 254; Indianapolis, etc., R. R. Co. v. Sims, 92 Ind. 496; Wabash R. W. Co. v. Forshee, 77 Ind. 158. The first paragraph of the complaint was sufficient before a justice of the peace.

As to the second specification of error, to wit, that the complaint does not contain facts sufficient, there being two paragraphs of complaint, if either of them is sufficient, this specification can not be sustained. The first paragraph was sufficient.

As to the third specification of error, to wit, overruling the demurrer to the evidence, a railroad company is not bound to fence its track at the open space, in front of a mill, necessary for the convenience of shipment. Indianapolis, etc., R. R. Co. v. Kinney, 8 Ind. 402; Pittsburgh, etc., R. W. Co. v. Bowyer, 45 Ind. 496. Nor in the immediate vicinity of the engine house, machine shops, car-house and wood-yard of the company. Indianapolis, etc., R. R. Co. v. Oestel, 20 Ind. 231; Jeffersonville, etc., R. R. Co. v. Brevoort, 30 Ind. 324. Nor where it would deprive the company of its own land or leased property. Jeffersonville, etc., R. R. Co. v. Beatty, 36 Ind. 15. Nor at stations or sidings where freight or passengers are received or discharged. Indianapolis, etc., R. R. Co. v. Christy, 43 Ind. 143; Indianapolis, etc., R. W. Co. v. Crandall, 58 Ind. 365; Lake Erie, etc., R. W. Co. v. Kneadle, 94 Ind. 454; Evansville, etc., R. R. Co. v. Willis, 93 Ind. 507.

There was evidence tending to show that the defendant's road runs east and west through a small place called Chili, where the defendant has a station and depot; that the defendant has a side track extending eastward from the depot about 250 yards, and on the south side of the main track; that in connection with said side track the defendant has built and maintains stock yards; that between the depot and the stock yards the ground next to the side track is several feet higher than the side track, and from that high ground freight is loaded on and unloaded from the cars on the side track that there is also between the depot and the stock yards, and on the south side of the road, a saw-mill, and that materials for and from it are loaded and unloaded at different places along said side track; that on the north side of the track, and about 100 yards east of the depot, is a grain house, used for storing, elevating and shipping grain; that there is no railroad fence on either side of the track between the depot and the stock pens. The evidence does not show where...