40 Ind. App. 233 | Ind. Ct. App. | 1907
Action by appellee. Trial by the court, special findings made, conclusions of law stated thereon, and judgment for $100 rendered in accordance therewith. ' The complaint was in three paragraphs. In the first it is alleged that the appellee’s horse entered upon appellant’s railroad at a place where the same was not securely fenced, was struck and killed, to appellee’s damage, etc. The second paragraph also proceeds upon the theory that” the appellant had violated a statutory duty. The third paragraph avers negligence upon the part of the appellant, setting out the details thereof at length. Demurrers to each of said paragraphs were overruled, but their' sufficiency was conceded upon the
The special findings show that appellee owned a farm through which appellant’s railroad track was laid. Its right of way had been theretofore fenced on both sides. The fence on the south side thereof had become old and out of repair. There was a farm crossing over the track, and an opening in the fence for such crossing. On September 14, 1903, there was a substantial gate across said opening, securely hinged to one post and chained and locked to the other, which gate was erected and maintained by appellee in accordance with the provisions of §5321 Burns 1901, Acts 1885, p. 148, §2. Appellant on said day tore out and proceeded to rebuild its fence, and in so doing removed said gate from its position, loosening the chain, and lifting it from its hinges. About 6 o’clock p. m. one of appellee’s employes inquired of appellant’s foreman in charge of said work if it would be necessary for appellee to put up his stock which was being pastured in a field adjacent to the railroad, and was told that it would not be necessary, that appellant’s employes would put the gate in its proper position and securely fasten it before they quit work. This they did, and on the following day continued tearing out and rebuilding said fence, again removing said gate from its position, taking out the post to which it was hinged and putting in a new one. They kept the gate open during the day for their own use. Appellee’s employe again went to appellant’s foreman in the evening, and inquired if it would be necessary to put up the stock that night to keep it off the track, and was told that it would not be necessary to do so, that the gate would be put in and fastened before appellant’s employes quit work that evening. The gate was set across said gateway, but appellant’s employes negligently failed to fasten .the same to the posts or otherwise make it secure. Appellee had no knowledge until the next morning
Judgment affirmed.