77 Ind. 504 | Ind. | 1881
The appellee sued the appellant to recover for two horses alleged to have been killed on the appellant’s road, at a point where the same should have been, but was not, fenced.
The appellant answered the complaint in three paragraphs. The first was a general denial.
The second paragraph of the answer states that the injury to the horses occurred at a point on the road where it runs through the lands, in Rush county, Indiana, owned by Jefferson Helm ; that its right of way for its road over the land of said Helm was granted by said Helm to the Junction Railroad Company, of which the appellant was the legal successor. He, said Helm, released said Junction Railroad Company from all liability'- for not fencing said railroad where it runs through said land of said Helm, upon condition that said company would put in six cattle-guards on the land of said Helm; that said company did put in said guards, and said Helm executed a written release to the said company of all liability for the injury or killing of said stock
Copy of release filed with answer:
“Connersville, November 25th, 1864.
“For the purpose of providing means to aid in the construction of the Junction Railroad, and in consideration thereof, I promise to pay, on the arrival of the first train of cars on said road at Rushville, to the order of the said Junction Railroad Company, at the Bank of the State of Indiana, the sum of two hundred dollars and the right of way through my land, the company putting in six cattle-gúards as its only obligation in regard to fencing, without any relief from valuation or appraisement laws.
“Jefferson Helm.”
The third paragraph of the answer is like the second, with the exception that it avers that the appellee had actual notice of the release.
The appellee demurred to the second paragraph of the answer, and replied to the third; the court sustained the demurrer to the second paragraph; the cause was submitted to the court for trial; the court found for .appellee; the appellant moved for a new trial; the motion was overruled, and judgment rendered for the appellee. The rulings of the court upon the demurrer and the motion for a new trial are assigned as errors.
The release set up as a part of' the second paragraph of the answer did not bind Helm to fence the appellant’s road.
The reasons for a new trial are, that the finding of the court is contrary to law, and not supported by sufficient evidence.
We have examined the evidence, and think it tends strongly to make out the case, and to sustain the finding of the court. The objection urged to the finding of the court is, that the evidence shows that the animals were injured on that portion of the appellant’s road which passes over the land of Helm, and that they got upon the road on said land, while kept upon the same by the appellee as the tenant of Helm. Granting this, we think the appellant was liable, for the reason that it was its duty to fence its road through the land of Helm. The appellee is permitted to recover, not
We think there is no error in the record.
Per Curiam. — It is ordered, upon the foregoing opinion, that the judgment below be affirmed, at the costs of the appellant.