54 Ind. App. 531 | Ind. | 1913
This action was brought to recover from appellant the value of two horses owned by appellee and which she avers strayed upon appellant’s railroad tracks through a defective fence along its right of way through her farm, and were killed by one of appellant’s trains. The complaint originally filed was in three paragraphs, all of which, except the first, were dismissed by appellee after the evidence was introduced. Separate demurrers to each paragraph of complaint were overruled. Upon issues formed by the complaint and an answer in general denial there was a jury trial, which resulted in a verdict and judgment in favor of appellee in the sum of $400. With the general verdict the jury returned answers to twenty interrogatories.
The only error assigned which has not been waived by failure to discuss it, is the court’s action in overruling appellant’s motion for a new trial. The questions discussed by appellant under this motion are the sufficiency of the evidence to sustain the verdict and the court’s refusal to give certain instructions to the jury.
The jury in answer to interrogatory No. 16 said that the gate at the farm crossing above referred to, did not lean away from the posts at the time of the accident so that it left a space more than two feet wide at the top, and in answer to interrogatory No. 18 that the horses could not have passed through the gate onto the right of way at that
Note.—Reported in 101 N. E. 829. See, also, under (1) 33 Cyc. 1294; (2) 33 Cyc. 1324; (3) 3 Cyc. 348; (4) 38 Cyc. 1764, 1765; (5) 38 Cyc. 1764; (6) 38 Cyc. 1711; (7) 3 Cyc. 418, 443. As to duty of railroad toward animal on track, see 49 Am. Dec. 261; 96 Am. Dec. 681; 20 Am. St. 161.