50 Ind. App. 106 | Ind. Ct. App. | 1912
— Suit by appellee against appellant to recover damages for injury to a team .of horses, caused by the alleged negligence of appellant.
Issues -were joined, and the cause tried by a jury, which returned a general verdict for appellee in the sum of $200, and answers to a series of interrogatories.
Appellant’s motions for judgment on the answers to the interrogatories and for a new trial were overruled, and this appeal taken.
Errors presenting the sufficiency of each of the paragraphs of complaint, and the .ruling on. the motion for new trial, are assigned and relied upon.
The first paragraph of amended complaint, omitting the formal parts, alleges, in substance, that on October 5, 1907, plaintiff was the owner of a team of horses, a buggy and a
The second paragraph avers that defendant had “laid and maintained a main track and a side track over and across Main street in Ora, Starke County, Indiana, over which said locomotive and ears were run. That defendant on said date negligently and unlawfully suffered, permitted and allowed a freight train to remain standing across said Main street without leaving any space across said street, and thereby obstructing the same. ’ ’ Then follows the allegation of ownership of said horses, etc., and that “by reason of said crossing being obstructed, as aforesaid,” the horses went and entered upon the tracks of said railway, without any fault on the part of appellee; that while said property was on said tracks, “said defendant so carelessly and negligently ran and operated its locomotive and cars, that the same were run upon and over said animals i!S * ® all in said county, and without any fault of said plaintiff.”
The first question presented is the sufficiency of each of these paragraphs of complaint. It will be observed from tlie allegations of each paragraph that it nowhere appears in either where appellee’s team entered on appellant’s railroad track. So far as shown by the allegations of the complaint,
Appellee relies on the case of Ohio, etc., R. Co. v. Gray-craft (1892), 5 Ind. App. 335; 32 N. E. 297, as authority for the sufficiency of the above allegations. That case does not contain the identical allegation of the first paragraph here involved, as counsel for appellee insist, and we think a distinction might be drawn between the charge of negligence in the two cases; but in view of the conclusion reached on the other feature of the case, we deem it unnecessary to dwell on such distinction.
It is sufficient to say in this connection, that the case last cited is authority only to the extent of holding that the language of the complaint in that case was “a sufficient allega
In view of the allegation of negligence on which this first paragraph in the case at bar proceeds, it becomes important and necessary to show where the animals entered on appellee’s track. It would he only in case the animals entered at a highway or street crossing, or at some point where the law imposed on the railroad company the duty of giving the statutory signals, and otherwise operating its train with eare> that the negligent operating and running of the train could be said to be such negligence as would furnish the causal relation necessary in such cases between the negligence charged and the resulting injury. If the animals entered the track at a point where appellant owed the duty of fencing, and had failed to^ fence, the negligent operation of the train would be wholly unimportant, because the sole and only negligence which furnishes the cause of action in such a case is the failure to fence in violation of the statute. On the other hand, if the animals entered the track through, some open gate at a private crossing, where the company owed no duty of keeping the same closed, the mere negligent operation of the train would not make appellant liable, because in such ease liability exists only where there is an intentional, wilful killing of or injury to such animals.
It seems apparent, therefore, in view of said allegations of negligence, charged by appellee, that it was necessary, in order that he might show the causal relation between such negligence charged and the injury to his animals, that he should have alleged that such animals entered on appellant’s tracks at a highway or street crossing, or at some point where they would not he trespassing animals, and where the company owed them the duty of giving signals, and otherwise operating its train with care.
"What we have said with reference to the first paragraph applies with equal force to the second, in so far as it proceeds on the theory that the negligent operation of appellant’s locomotive and cars was the proximate cause of the injury to appellee’s property. In fact, if the allegations of this paragraph be construed most strongly against the pleader, as the law requires, the alleged obstruction to the crossing, which by other averments was'shown to be a train, would have prevented the team’s getting on the track at the crossing.
If it can be said that the averments of this paragraph are sufficient to show that the alleged obstruction to the crossing caused the horses then and there to enter on the track, and while so on the track, as a result of said obstruction, they were run over by appellant’s locomotive and cars, we think that a causal connection between the obstruction to
The judgment below is therefore reversed, with instructions to the court below to sustain the demurrer to said first paragraph of complaint, with leave to • appellee to amend said paragraph, and for such further proceedings as may be consistent with this opinion.
Note. — Reported in 97 N. E. 181. See, also, under (1) 33 Cyc. 1262; (2) 33 Cyc. 1265; (3) 31 Cyc. 81, 322; (4) 31 Cyc. 100; (5) 33 Cyc. 1258; (6) 33 Cyc. 1257; (7) 1913 Cyc. Ann. 3372. As to a railroad company’s duty to fence in prevention of injury to live stock, see 21 Am. St. 289. On the question of the constitutionality of statutes requiring railroad company to fence tracks and build cattle guards, see 31 L. R. A. (N. S.) S61. As to the measure of care of railroad company to maintain fence once constructed, see 11 L. R. A. (N. S) 228. The question of the liability for injury to stock other than by trains, because of breach of statutory duty to fence, is discussed in 37 L. R. A. (N. S.) 1181.