168 Ind. 390 | Ind. | 1907
Action by appellee for the killing of two steers. The complaint is in two paragraphs, the first stating the cause of action under the statute, alleging that the steers went upon the railroad track at a point where the same might have been, but was not, securely fenced. The second is predicated upon the alleged negligence of appellant’s servants in the management and operation of its train. A demurrer to each paragraph of the complaint was overruled, the case was put at issue by general denial, there was a special finding of facts, conclusions of law stated, and judgment rendered thereon in favor of appellee for $90.
The facts specially found, applicable to the first paragraph of the complaint, may be summarized as follows: Appellant was the owner of thirteen steers, kept in an enclosed pasture, surrounded by a fence, in good repair and sufficient to turn stock. On May 1, 1904, they escaped from said pasture without plaintiff’s fault or knowledge, and he did not know that they had escaped until he was informed on the morning of May 2 that two of them had been killed by defendant company. After the steers left plaintiff’s pasture they entered upon defendant’s right of way at a point near said pasture where the defendant had failed to construct and maintain a fence, and where it could and should have been fenced. Erom the place of entry the cattle passed along, the line of the railroad to Clear creek, where they passed under a bridge constructed by defendant over said creek, from the east to the west side of the railroad, and continued their course west over the lands of others, until they arrived at and entered upon the lands of one Ketcham, whose land lay on both sides of the railroad.
The act of 1885, and all previous legislation, and the decisions of the court construing the same, were reviewed in the case of Hunt v. Lake Shore, etc., R. Co. (1887), 112 Ind. 69, and the conclusion there reached that, by the latter act, the manifest intention was to give the farmer, who prior thereto had no such power, the right to force a wagon way across a railroad that traversed his land, and to relieve railroad companies from all liability for injuring or killing animals that got upon the track by passing through one of such gates. In other words, under the act of 1885 a railroad company is not liable, in the absence of negligence, for the injury or killing of animals that enter upon its tracks by a gate of a private farm crossing. We are still satisfied with the ruling, and this decision must dispose-of the present case if it is found that the cattle in question went upon the railroad track through such gate.
It will be recalled that the cattle broke out of their pasture, and reached the railroad at a place where it might have been, but was not, fenced. The plaintiff himself testified that the unfenced road the cattle entered upon was a stone-quarry switch and not a part of the main road. The special finding further states that the cattle went along the road till they came to Clear creek, then down into the creek, passing under the bridge from the east to the west side of the right of way of the main track, and thence, continuing west some distance, over the lands of others, reached and entered upon the lands of Ketcham, and thence passed to the railroad track
With respect to the second paragraph of complaint that counts on negligence of appellant’s servants in managing the train, the facts disclosed by the special findings are, in substance, as follows: The defendant’s track is practically straight for a distance of 800 feet south of the point where the first steer was struck, from which point the engineer in charge of the train might have seen the cattle on the right .of way if he had looked. Said engineer did see the cattle when 400 feet south of where the first one was struck, and blew the engine whistle, and gave the usual signal for animals on the track, but failed to stop or check the tram, until both animals were struck. The steers escaped from their pasture and were killed as aforesaid without any fault on the part of the plaintiff.
It is not shown that the cattle were on the track when the engineer could have seen them. Eor aught that is found they might have been at the bottom of a high embankment, and might not reasonably have been expected to run-upon the track in front of the train. Besides, there is no finding that the engineer did not try to stop the train, or that he could have stopped it if he had tried.
6. It rested upon the plaintiff to prove the negligence. It is a familiar rule of practice that, if a finding is silent upon a material fact, as to that fact it will be presumed against the party having the burden of proof. Dennis v. Louisville, etc., R. Co. (1888), 116 Ind. 42, 1 L. R. A. 448.
TJpon the facts found it does not appear that there was any duty resting upon the engineer to bring his train to a stop, and, by conceding to him the presumption of due care,
Eor error of tbe court in stating its conclusions of law on tbe special findings in favor of tbe plaintiff, tbe judgment is reversed, with instructions to tbe Monroe Circuit Court to state tbe conclusions of law in favor of tbe defendant, and render judgment accordingly.
Judgment reversed.