1 Indian Terr. 20 | Ct. App. Ind. Terr. | 1896
This action was brought by the apellee against apeliant to recover the value of five steers killed on the appellant’s railroad, on or about the 25th day of April, 1894. The complaint is as follows: “Your petitioner, Kirk Woodworth, plaintiff herein, a United States citizen, and a resident of the third judicial division, Indian Territory against Chicago, Rock Island & Pacific Railroad, and defendants herein, a corporation, duly incorporated, doing a regular railroad business and having one of their tracks running through the Third Judicial Division, Indian Territory, and having a regular station or depot house, with their regular railroad agent, in the town of Mineo in the Third Judicial Division, Indian Territory' plaintiff complaining says : That'on or about April 25, 1894, at ornear about two miles north of said track No. 1, on said defendants railroad, in said division and territory, said defendants killed five steers and injured one steer, so as to be unmarketable and of the value of $175.00. Said steers were branded, all of the said six steers being the property of said plaintiff. Plaintiff further alleges that defendant killed said steers without any fault or negligence -of said plaintiff.” The answer to said complaint is as follows: “And for answer to plaintiff’s complaint, the defendant denies all and singular the allegations therein contained, except as hereinafter expressly admitted. The defendant admits that, at all times mentioned in plaintiff’s complaint, it was a corporation organized and existing under and by virtue of law, and owned and operated, through said Third Judicial Division, a railroad known as the Chicago, Rock Island & Pacific Railway as alleged; that plain tiff is a resident of said district; that the steers mentioned in plaintiff’s complaint were injured and killed as alleged. But defendant avers, as to the
The counsel for appellant assigns as one of the errors in this case, that the complaint does not state a cause of action, in this: That it does not allege that the cattle in question were killed or injured by the negligence or carelessness of the railway company, or that the company was negligent in the operation of its train, or otherwise; that the appellant had a right to operate its railway and train, and that it is not liable for stock killed thereby, unless such killing resulted from the carelessness or negligence of the railway company. In support of this contention, appellant cites the following authorities: Railroad Co. vs. Holland, 40 Ark. 336; Railroad Co. vs. Kerr, 52 Ark. 162; 12 S. W. 329; Turner vs. Railroad Co. 76 Mo. 261. Appellant also contends that the defect in the complaint, that it does not state a cause of action can be raised at any time. Counsel for appellee in their brief, state as follows: “We concede that the complaint should have contained the allegation that the killing of the appellees cattle was by reason of the negligence of the appellant, but contend that this is not an error for which the court should reverse the cause, and that the appellant waived this error — First by answering to the merits and specifically denying that it was negligent; and, Secondly failing to object to evidence introduced for the purpose of and proving negligence.” Several authorities are cited in support of this contention of appellee, one of which is found in the decision of the Supreme Court of Arkansas, in which it is said; ‘ ‘If the defendant had doubted the sufficiency of the pleading, he should have demurred and brought the question of its legal sufficiency before the court; but instead of this, he has treated them as sufficient in law to put him to answer, and having answered, and gone to