Welty v. The Indianapolis & Vincennes Railroad Co.

• Decision Date: 21 January 1886
• Docket Number: 12,344
• Citation: 4 N.E. 410,105 Ind. 55
• Parties: Welty v. The Indianapolis and Vincennes Railroad Company
• Court: Indiana Supreme Court

4 N.E. 410

105 Ind. 55

Welty v. The Indianapolis and Vincennes Railroad Company

No. 12,344

Supreme Court of Indiana

January 21, 1886

From the Morgan Circuit Court.

Judgment affirmed.

W. R Harrison and W. E. McCord, for appellant.

S. O Pickens, for appellee.

OPINION

Elliott, J.

The appellant was the owner of a mare of the value of $ 150 on the 30th day of September, 1882, and on that day lent her to Thomas King to ride to Martinsville. King became intoxicated while at that place, and was in that condition upon his way from that town to the appellant's house. The mare, with King as her rider, travelled along the public highway leading to the house of the appellant, but when she came to the place where the highway crossed the track of the appellee's railroad, left the highway and travelled along the railroad for about eight hundred feet. An approaching train frightened her, causing her to run into a trestle work where the train ran upon her and killed her. There were no fences or cattle-guards at the highway crossing, and nothing to prevent the mare from entering upon the railroad track. Upon a special verdict, setting forth these facts, the trial court gave judgment in favor of the appellee.

The appellant founds his cause of action entirely upon the statute requiring railroad companies to securely fence their tracks, and unless the facts stated in the special verdict make a case within the statute, he can not recover, for a plaintiff must recover upon the theory on which his complaint is framed or not at all. Leeds v. City of Richmond, 102 Ind. 372, 1 N.E. 711; City of Logansport v. Uhl, 99 Ind. 531 (50 Am. R. 109); Sims v. Smith, 99 Ind. 469, see p. 477 (50 Am. R. 99); Western Union Tel. Co. v. Reed, 96 Ind. 195; Western Union Tel. Co. v. Young, 93 Ind. 118; Mescall v. Tully, 91 Ind. 96, and cases cited.

Contributory negligence is not a defence to an action based upon the statute imposing on railroad companies the duty of fencing their tracks. The disregard of this duty is not simply negligence on the part of a railroad company, but it is a tort, for it involves the direct violation of a positive and explicit law. So the statute treats the disregard of duty, and so our decisions have uniformly declared. Jeffersonville, etc., R. R. Co. v. Ross, 37 Ind. 545, see p. 549; Louisville, etc., R. W. Co. v. Cahill, 63 Ind. 340; Louisville, etc., R. R. Co. v. Whitesell, 68 Ind. 297. A very forcible assertion of this doctrine is contained in the opinion of Judge Cooley, in Flint, etc., R. W. Co. v. Lull, 28 Mich. 510. This rule, of course, only applies to cases where the railroad company is bound to fence, for, if the animals killed entered upon the track at a place where the railroad company was not bound to fence, then the contributory negligence of the owner will prevent a recovery. Cincinnati, etc., R. W. Co. v. Hiltzhauer, 99 Ind. 486. The rule declared in the case last cited, that if stock are killed at a point where the railroad company was not bound to fence a recovery will be defeated by contributory negligence, does not apply here, for the place where the mare entered upon the track was one which the appellee was bound to protect by cattle-guards, and the failure to construct suitable guards where it is the duty of the railroad company to construct them, is regarded as a failure to fence. Fort Wayne, etc., R. R. Co. v. Herbold, 99 Ind. 91. What we have said shows that the element of contributory negligence exerts no influence upon the decision of this case, and that our judgment must be given irrespective of that element.

An owner who abandons his animal can not recover, although it entered upon the track of a railroad, and was killed, at a place where the company failed to perform its statutory duty by fencing its track. Knight v. Toledo, etc., R. W. Co., 24 Ind. 402; Jeffersonville, etc., R. R. Co. v. Dunlap, 29 Ind. 426; Corwin v. New York, etc., R. R. Co., 13 N.Y. 42, see opinion, Denio, J., p. 54.

Sound principle supports this rule. If an owner were permitted to voluntarily put his domestic animals in a situation where it was almost certain that they would be killed by passing trains, and yet, in the event that they were killed, recover from the railroad company, it would open the way to great frauds, since it would enable the owner to recover for property voluntarily exposed to destruction; but this would not be the only evil result, for a further evil consequence would be that the temptation to get rid of animals not needed or not useful at the expense of the railroad company would endanger the safety of those who travel upon our railroads. Public policy requires that a man who voluntarily puts his property in a place where it is certain that it will be destroyed shall not receive assistance from the courts. A man who willingly abandons his property to destruction, or purposely exposes it to a known danger, has no right, either in law or morals, to invoke the assistance of the courts of justice to secure pay for it. But, in order to deprive the owner of his rights under the statute, there must be something more than mere contributory negligence; there must be a voluntary abandonment of his property or an intentional exposure of it to danger. This intention, to be sure, need not be expressed in direct words or acts; it may be inferred from circumstances, but it must nevertheless exist. When it does appear that it exists, then, under the maxim volenti non fit injuria, there can be no recovery. If a man consents to the destruction of his property he can not recover its value.

If an owner rides his horse upon a railroad track, he must, under the reasoning of the cases to which we have referred, be deemed to have voluntarily exposed it to destruction. Such an act implies an assent to its destruction and indicates an abandonment of it. The omission of the railroad company to do what the law enjoins does not authorize an owner of property to place it on the track, for the Legislature can not be presumed to have intended that one who abandons his property shall nevertheless recover its value. To us it seems clear that if the appellant had ridden the mare upon the defendant's track, he would not have the slightest grounds upon which to base his claim for the value of his property. Such an act is something more than mere negligence; it is a wilful trespass upon the property of another, exposing the trespasser to imminent danger. He who voluntarily puts his property in such a dangerous...