111 Ind. 259 | Ind. | 1887
This was a suit to recover the value of a mare alleged to have been struck and killed by the appellant’s engine and train of cars, on the 18th day of October, 1884. The complaint charged that the railroad was not securely fenced at the place where the animal went upon the track. The issue was made by a general denial. There was a trial, verdict and judgment for $3,500.
It is urged on behalf of the appellant, that the verdict is not sustained by the evidence.
The railroad company rested its defence mainly upon the proposition that it was under no legal obligation to maintain a fence at the place where the animal entered upon its track.
It appears from the evidence, that the appellant’s line passes east and west through the city of Rushville. A short distance east of the east boundary of the city limits the railroad intersects a highway, known as the Michigan road, which runs north and south. At the point of intersection, and for some distance either way, the highway runs parallel with and along the west bank of a race or watercourse, over
It is abundantly settled that a railroad company is not required to fence its track nor to maintain cattle-pits at points where to do so would interfere with the safety of its employees in operating trains upon the road, or where fences or cattle-pits would interfere with its rights in the transaction of business with the public, nor where the rights of the public in travelling or doing business with the company would be interfered with. When animals enter upon railroad tracks at such places and are killed within limits that can not and are not required to be fenced, the company is not liable under the statute. Indiana, etc., R. W. Co. v. Quick, 109 Ind. 295; Indiana, etc., R. W. Co. v. Sawyer, 109 Ind. 342; Fort Wayne, R. R. Co. v. Herbold, 99 Ind. 91.
The company did not, however, make its defence complete, by showing that it could not maintain a fence or cattle-pit in the highway. The location of its bridge was such that it was necessary that it should have been so constructed as to prevent animals from entering upon it; or, if this was impracticable, the fact should have been made to appear.
While courts maj say as matter of law that railroad companies can not be required to erect fences or construct cattle-pits in public highways, courts can not judicially know that a railroad bridge abutting upon a highway may not reasonably be so constructed as to deter animals from entering
Until it appears that it is reásonably impracticable to construct bridges with cattle-guards, we are constrained to hold that where a railroad company maintains a bridge in such a condition that animals may enter upon it from a public highway, thus putting in jeopardy the safety of trains, as well as the lives of the animals, the railroad is not securely fenced. Louisville, etc., R. W. Co. v. Porter, 97 Ind. 267; Evansville, etc., R. R. Co. v. Barbee, 74 Ind. 169.
It does not alter the case that the bridge may have been partially in the highway, or that the animal may have been struck while upon that part of the bridge which extended into the highway limits. If the railway company appropriated part of the highway to the purpose of maintaining its bridge, .and left its structure in such a condition that animals could enter upon it, the company will not be heard to say that animals killed upon the bridge were killed within the limits of the highway. After the railway company converted part of the highway to the support of its railway bridge, that part of it which was occupied by the bridge, and the tracks thereon, •could not be regarded as part of the highway.
At the trial the plaintiff was permitted, over the objection
It was not error to permit the question to be answered, especially as the record in that connection indicates that counsel for plaintiff apprised the court that if they did not maintain the hypothesis upon which the question was put the evidence should be stricken out. City of Indianapolis v. Scott, 72 Ind. 196; Pennsylvania Co. v. Marion, 104 Ind. 239; Nave v. Tucker, 70 Ind. 15.
Until the contrary appears, we must assume that other evidence was given in support of the hypothesis upon which the question rested, or that it was withdrawn from the jury.
Rulings' made by the court in respect to admitting and excluding evidence upon various subjects connected with the condition of the animal at the time she was killed, in respect to her market value at Rushville, if withdrawn from the race-course, whether or not she had been the loser in races, and as to her comparative value with another animal named, ai’e the subjects of comment by counsel. Without going into details upon these'subjects, it is sufficient to say that we have considered the questions presented and have found no error in the rulings of the court.
The value of the animal as a broodmare came in question at the trial, and the appellant asked a witness what one of her colts, which had been sold, some years before, brought at a public sale at or near the city of Rushville. The court sustained an objection to the question. It does not appear from any statement in the l’ecord what the witness would have testified to in answer to the question put. No question is,, therefore, presented for consideration. Higham v. Vanosdol, 101 Ind. 160.
Questions were asked by the appellant in reference to the-general reputation of the mare among horsemen and turfmen.
Numerous other questions relating to rulings upon the evidence are discussed. We have examined them, and find no error.
The questions growing out of the refusal to give certain charges asked by the appellant have been considered and disposed of by what has already been said upon the subject of the duty of the railroad to maintain its bridge in such a condition as to prevent animals from going upon it.
The instructions asked and refused proceeded upon the assumption that if the animal entered upon the railroad track at a public crossing, or if the west end of the bridge extended into the highway, so that no cattle-pit could have been maintained therein, or if the animal was killed on the bridge within the limits of the highway, then in either case no recovery could be had by the plaintiff. As has already been seen, neither of the foregoing theories, without more, is maintainable. There is evidence which sustains the amount assessed by the jury.
Under the well settled rule we can not disturb a verdict upon what we might suppose to be the weight or preponderance of evidence. The instructions of the court put the case fairly to the jury. There was no error.
Judgment affirmed, with costs.