90 Ind. 380 | Ind. | 1883
— This was a suit by the appellee to recover the value of two mare colts which wer^ run over and killed by the appellant’s locomotive, and where its road was not securely fenced. The cause was put at issue and tried by the court, and, at appellant’s request, the court found the facts specially, and stated its conclusion of law thereon, in substance, as follows:
“First. That the plaintiff was, in November, 1880, the-, owner of two colts, of the value of $120.
“Second. That, at said time, the defendant owned and operated a railroad in Porter county, Indiana, and through the lands of one Miller; that defendant permitted said Miller to maintain a private crossing over its right of way and track to enable him the better to pass from his tracts of land adjoining on either side thereof; that the right of way and track of the defendant was securely fenced, except at the point where said private crossing was maintained, at which place substantial gates were erected.
“Third. That the plaintiff is the owner of land adjoining the land of Miller, and between them they maintained a partition fence in fair condition and about four feet in height, through which partition fence the colts escaped from plaintiff’s fields to the land of said Miller, without fault or negligence on the part of the plaintiff, and .from the land of Miller to the'railroad track of the defendant, through the gate at said private crossing, which at the time had negligently been left open by Miller, and that then and there the colts were killed by defendant’s train of cars; that the land of Miller, over which the colts passed, was fenced on three sides, and a portion thereof cultivated, and one side was unfenced and open to the public commons.”
As a conclusion of law, “ The court concludes that, as against the plaintiff, the road of the defendant ought to have been securely fenced, but was not, and that the defendant is liable for the value of said animals, and plaintiff should have judgment therefor.”
In this court the appellant has assigned errors as follows r
1. The complaint does not state facts sufficient to constitute a cause of action; and,
2. The court erred in its conclusion of law.
Of the first error the appellant’s counsel say: “ The gist of the action, and the only part of the complaint upon which evidence seems to have been adduced, is as follows: ‘ That, at a place where by law the defendant was compelled to fence its railroad, but which was not done, and a gate was left open so that the colts could and did enter upon the railroad without hindrance, the same not being on station-grounds or at any crossing,’ there being a statement that they were killed by a train of cars on defendant’s road. This is the particular statement of the insufficiency of the fence, and we submit it is not a sufficient statement, within the meaning of the decisions of this court.” This is the only objection to the complaint pointed out by counsel, and it is made for the first time in this court. The objection comes too late, even if it were well taken. After judgment and on appeal, it must be held that defective allegations of fact are cured by the finding or verdict. Donellan v. Hardy, 57 Ind. 393; Smith v. Freeman, 71 Ind. 85; Cox v. Albert, 78 Ind. 241.
Under the second error, it is insisted that the court erred in its conclusion of law, because the court had found as facts that appellant’s right of way and track were securely fenced, except at the point where the private crossing was maintained, at which place substantial gates were erected. In discussing this point the appellant’s counsel say: “Noyy,. there is no finding that the gate was out of repair, but the court finds that this ‘ substantial gate ’ had been negligently left open by Miller, whose land the road at this point abutted, and for whose convenience this gate seems to have been made. There is no finding as to the time during which the gate was
So, also, iix Indianapolis, etc., R. W. Co. v. Thomas, supra,.. the court said: “A private way is not one in which the public have an interest, and closing it by a fence or gate can affect only the person to whom it belongs. We are unable to-see any principle upon which railroad corporations can be absolved from the duty to fexxce sxxch a way. If they are relieved from fencing any private way, where can any line be
In the case at bar, we are of opinion, that upon the facts specially found the court did not err in its conclusion of law.
The judgment is affirmed, with costs.