4 Ind. App. 249 | Ind. Ct. App. | 1892
Action by the appellee against the appellant for damages for the killing of a horse upon appellant’s railroad track. There was a demurrer to the complaint, which was overruled, and upon the filing of an answer of general denial the cause was tried by a jury, resulting in a verdict and judgment for the appellee for the value of the horse. The jury with their general verdict also returned
It is not claimed that there was any evidence of contact by the locomotive or cars with the horse. The killing was the result either of the fall upon the tressel or the fall over the same on to the ground.- It is well settled that under the statutes prior to the law of 1885 there could be no liability of a railroad company for the death or injury of an animal unless the same was killed or injured by an actual touching by the engine or cars or other carriages. Indianapolis, etc., R. W. Co. v. McBrown, 46 Ind. 229; Louisville, etc., R. W. Co. v. Smith, 58 Ind. 575; Baltimore, etc., R. W. Co. v. Thomas, 60 Ind. 107; Jeffersonville, etc., R. R. Co. v. Downey, 61 Ind.
The enactment of 1885 has not changed the statutory liability. Jeffersonville, etc., R. R. Co. v. Dunlap, 112 Ind. 93. If, therefore, the appellee can recover in this case, it must be because of the appellant’s, common law liability for negligence. New Albany, etc., R. R. Co. v. McNamara, 11 Ind. 543; Toledo, etc., R. W. Co. v. Milligan, 52 Ind. 505 ; Indianapolis, etc., R. W. Co. v. McBrown, supra; Pennsylvania Co. v. Lindley, 2 Ind. App. Ill.
At common law railroad companies are not bound to fence their, tracks, and where the owner of the animals permits them to run at large in the vicinity of a railroad track, in the absence of an order from the board of commissioners permitting the same, he is guilty of such negligence as will prevent him from recovering if any such animals stray upon the track and are killed or injured, unless such killing or injuring was wilful. Lyons v. Terre Haute, etc., R. R. Co., 101 Ind. 419 ; Klenberg v. Russell, 125 Ind. 531; Chicago, etc., R. R. Co. v. Nash, 1 Ind. App. 298; Pennsylvania Co. v. Lindley, supra.
Conceding, then, that the appellee kept his horse in a field near the railroad track which was not enclosed by a sufficient fence to confine stock ordinarily, it must be admitted that there can be no recovery in this case unless there was evidence from which the jury could legally conclude that the killing was wilful. The question, therefore, is, was there such evidence ? We are of opinion that this question must be answered in the affirmative. Waiving all questions of negligence on the part of the appellant’s employees up to the time the horse fell upon the tressel-work, there is evidence tending to prove that he was thrown by them in a violent manner over the said tressel, so that he fell from eight to ten feet before he struck the ground, and then rolled about twenty feet further; that, before throwing the horse over the tressel, the employees were requested to wait until other help
If the jury believed this evidence, it was sufficient to warrant them in finding that the injuries were inflicted, not only negligently, but wilfully and recklessly, "We can not therefore disturb the verdict upon the evidence. The overruling of the motion for a new trial was not such error as will authorize a reversal of the judgment.
The appellant insists that its motion for a judgment non obstante should have been sustained. There were no interrogatories as to the question of wilful killing. They related wholly to the question of the train’s coming in contact with the animal, and that of diligence by the trainmen before the horse got on the tressel. There is no necessary conflict between the general verdict and the answers to the interrogatories.
The remaining question relates to the sufficiency of the complaint upon demurrer. It proceeded upon the theory of a wilful and negligent killing, closely following the precedent in the case of Indianapolis, etc., R. W. Co. v. McBrown, supra, in which the complaint had been held sufficient. The demurrer was properly overruled.
We find no reversible error.
Judgment affirmed.