59 Ind. 188 | Ind. | 1877
— This was an action by the appellee against the appellant, to recover the value of a horse and an ass, the property of the plaintiff, alleged to have been killed by the engine and cars of the company, upon its road where it should have been, but was not, fenced.
The defendant answered, secondly, in substance, that, before the construction of its road at the place where the
A demurrer for want of sufficient facts to this paragraph of answer was sustained, and the defendant excepted.
Such further proceedings were had as that final judgment was rendered for the plaintiff.
The principal error on which the appellant relies for a reversal is the ruling on the demurrer.
We are of opinion that the matter set up in the paragraph of answer was no bar to the action, and, consequently, that no error was committedin sustaining the demurrer. The point involved was expressly decided in the case of The New Albany and Salem R. R. Co. v. Maiden, 12 Ind. 10.
It may be regarded as settled, that the owner of stock killed by the engine or ears of a railroad company upon its road, where such owner has bound himself by contract with the company to keep the road properly fenced, can not recover of the company, under the statute. In such case, the owner has taken upon himself the burden of keeping the road properly fenced, and he can not be heard to complain of the want of a fence. The cases upon this point need not be here cited. But the case in judgment stands upon somewhat different ground. Here is no contract except what might be implied from
The cost of constructing and maintaining additional fences, made necessary for the proper use and enjoyment of a farm.by reason of the construction of a railroad thereon, is a proper item of damages to be awarded the landowner. Grand Rapids and Indiana R. R. Co. v. Horn, 41 Ind. 479. Whether the report of the appraisers names the fencing as part of the damages assessed or not, it would have to be presumed that they included the fencing, if they deemed the land-owner entitled to any thing on that ground. Evidence, it would seem, could not be gone into to determine whether any thing was or was not allowed for fencing.
The result would be, if the paragraph of answer were to be held good, that, in all eases where land has been condemned for railroad purposes, and damages assessed and paid, the owner of the land might find it difficult to recover for stock killed upon the road running through his land where it was not fenced, because it would have to be presumed that he had got whatever damages he was entitled to for the fencing made necessary. This, we fear, would, in many instances, be doing violence to the facts, and it would tend to the subversion of the law, the object of which was more to secure safety to the public in th.e operation of railroads, by keeping stock off the track by proper fences, than to remunerate those whose stock might be killed where the roads are not fenced.
The judgment below is affirmed, with costs.