39 Ind. App. 66 | Ind. Ct. App. | 1906
By this action appellant sought to recover from appellee the value of a horse injured by falling into a bridge on the line of appellant’s railroad.
The complaint, as amended, consisted of four paragraphs. The first and third proceed upon the theory of negligence; the second, under the statute (§5312 Burns 1901, §4025 E. S. 1881) ; the fourth, an intentional and wilful injury. The demurrer for want of facts was sustained to the first and third paragraphs, and overruled as to the second and fourth. Answer in denial. Trial by
The errors assigned call in review the rulings of the court in sustaining the separate demurrer to the first and third paragraphs of the amended complaint, and in overruling appellant’s motion for a new trial.
(1) From a fairly full statement of the first paragraph it appears that on October 14, 1904, appellee, a corporation, was the owner, and was then, and for more than a year prior thereto had been, engaged in operating an interurban railroad, by running cars carrying passengers and express between the cities of Indianapolis and Lafayette, Indiana, and through Boone county, in said State, using-electricity for motive power by overhead trolley system; that it carelessly and negligently failed to construct a suitable and sufficient fence to turn horses along its right of way at a point in said Boone county, where it could have built a fence, and should have done so; that at the point where appellee had so neglected to fence its right of way, and without fault of appellant, appellant’s horse strayed upon appellee’s said right of way and track; that about one and one-quarter miles north of the place where appellant’s horse entered appellee’s said right of way and upon its tracks appellee had constructed a bridge thirty feet in length, ten feet wide and ten feet from the top to the water below, over what is known as Fenton’s ditch, also an approach to said bridge two hundred feet long, ten feet high, and with steep banks on either side, and which was then used by appellee as a roadbed; that said bridge was unfit and dangerous for animals to pass over, as appellee’s servants then engaged in operating a north-bound car of appellee at the time of the injury complained of well knew; that appellee by such
The leading averments of this paragraph clearly indicate the pleader’s intention to rest his cause of action upon the theory of negligence. The complaint avers that appellee negligently failed to construct a “sufficient and suitable fence” at a point along its road where it was its duty so to do, and that appellant’s horse went upon its right of way and track at that point.
The question here, as we have said, is based upon appellee’s negligence, and not upon a statutory liability. With this view of the pleading, we are not persuaded that the eases cited by appellee, based upon a different state of facts and a different theory, should control. The paragraph is sufficient to require an answer.
Other reasons are assigned in support of the motion for a new trial, but it is unnecessary further to extend this opinion in order to consider them.
Judgment reversed, with instructions to the trial court to overrule appellee’s demurrer to the first paragraph of complaint.