109 Ind. 295 | Ind. | 1887
Lead Opinion
This action was commenced in the Montgomery Circuit Court, and by a change of venue taken to • the Clinton Circuit Court, where it was tried.
The railway company answered in three paragraphs:
First. In denial.
Second. That the horses mentioned in the complaint entered upon the railway track, and were killed, at a point where said track could not be fenced without injury and great inconvenience to the public, that is to say, at a point where said track crosses a highway, and where the fencing of such track would unlawfully obstruct said highway.
Third,. That said horses entered upon the railway track at a point where the same could not be lawfully fenced in, that is to say, at the railway company’s depot and station grounds at Wesley station in said county of Montgomery, said depot, and station grounds being used to receive and discharge freight and passengers; that a fence at said point would greatly injure and embarrass the railway company and the travelling and shipping public, in the transaction of railway business at said station.
Issue, trial by a jury, verdict in favor of Quick, a new trial refused, and judgment on the verdict.
It was shown at the trial that Wesley station is a flag station upon the railway in question, on the west side of a public highway running from north to south through Montgomery county; that the passenger depot consists of a small building and a platform over sixty feet long, situate on the south side of the main track, and immediately west of the high
There was some conflict in the evidence as to the condition •of the cattle-pit at the time one of the horses fell into it as •stated, and as to some other kindred affairs, but as there was no question of negligence involved in the issues, which the jury were empanelled to try, such conflicting evidence had no reference to any material matter now before us.
The controlling question at the trial was, had the railway •company wrongfully failed to fence in its track at the point at which the horses entered upon its right of way ?
Wood, in his woi’k on Railway Law, at page 1555, states the general rule to be that railway companies are not required to fence their depot grounds, as such a fence would be a great inconvenience to the companies as well as to the public, and that where cattle or other domestic animals, straying upon the highway, enter upon the track of a railway •company over such grounds, or at any other point where the company is not obliged to erect a fence, such company can only be held liable for injuries wilfully inflicted. See, also, pages 1543 and 1564.
In this State it lias been held that railway companies are pot required to fence their tracks at stations and sidings where freight or passengers are received or discharged, and are not liable to pay for cattle, or other animals, which may wander upon the track at such places and be killed, without negligence on the part of such companies. This holding has been, and still is, upon the theory that when a railway track is as securely fenced as the nature of its business and public convenience will permit, it is “ securely fenced in ” within the meaning of section 4031, R. S. 1881, and is either expressly, nr in principle, sustained by a long line of decided cases. Indianapolis, etc., R. R. Co. v. Oestel, 20 Ind. 231; Jeffersonville, etc., R. R. Co. v. Beatty, 36 Ind. 15; Indianapolis, etc., R. R. Co. v. Christy, 43 Ind. 143; Pittsburgh, etc., R.
The doctrine, which the foregoing cases are cited as sustaining, is applicable to the essential facts of this case, and, consequently, a new trial ought to have been allowed for want of sufficient evidence to support the verdict.
The evidence given in this cause was taken down by a short-hand reporter, and a long-hand and duly certified report of the evidence so given was made by the reporter and filed with the clerk of the court below. A map of Wesley station and its immediate vicinity and some other papers in writing, which were put in evidence, were attached to this long-hand report, and are referred to and identified by it as exhibits which constitute a part of the evidence. This original long-hand report of the evidence, with the exhibits attached, has been embraced in, and certified to us as a part of, the bill of exceptions.
The point is made that the bill of exceptions shows upon its face that it does not contain all the evidence given in the cause, because the accompanying exhibits are not copied into the long-hand report of the evidence, and because original papers can not be certified to us as a part of the transcript of the proceedings below.
It is true, that, under our former practice, and as a general rule now, a paper read in evidence must be copied into the transcript of the bill of exceptions at some appropriate place. It is also true, that, as a general rule, an original paper can not be certified or transmitted as a part of the transcript of the proceedings from which an' appeal is prosecuted to this court. But the long-hand report of the evidence before us is not, and does not purport to be, a transcript of the evidence introduced at the trial. It is, under section 4010, R. S. 1881, an original manuscript or document incorporated in the bill of exceptions. It follows that original papers read
The judgment is reversed, with costs; and the cause is. remanded for a new trial.
Rehearing
On Petition foe a Reheaeing.
A petition for a rehearing has been filed in this case, and in a brief accompanying it, bitter complaint is made that we did not at the former hearing consider the cause upon the theory upon which it was tried in the court below, accompanied with an intimation that we certainly did not read the evidence given at the trial with as much care as it was our duty to have done injustice to the appellee.
We, nevertheless, did read the evidence very carefully, and, although we did not deem it then necessary to say so, we. came to the conclusion that the case had been tried upon an utterly erroneous theory, and that the judgment might have been rightfully reversed for that reason alone.
The averment of the complaint was, as has been already stated, that the horses entered upon the railway track at a point at which it was not securely fenced, and the evidence showed beyond all controversy that they entered the track, or, which was, in legal contemplation, the same thing, into an open area adjoining the track, at Wesley station, near, if not quite, a half a mile east of where four of the horses were killed, and a very material distance east of the place at which the other horse ran into the cattle-pit and was also killed.
The real condition of the track with reference to fencing,
In eases like this, it is the condition of the road at the place at which the animals entered upon the track, and not where they were killed, which becomes the material question for decision. Toledo, etc., R. W. Co. v. Stevens, 63 Ind. 337; Wabash, etc., R. W. Co. v. Forshee, 77 Ind. 158; Louisville, etc., R. W. Co. v. Porter, 97 Ind. 267; Louisville, etc., R. W. Co. v. Thomas, 106 Ind. 10.
It is true that much of the evidence introduced at the trial had reference to the condition of the cattle-pit into which one of the horses fell, and over which the others leaped, and counsel, during the progress of the trial, seemed to regard that as the pivotal question in the cause, but, for the reasons given, it was a merely incidental and immaterial question.
After the horses got upon the track in front of the locomotive, they would probably have been in less danger if there had been no cattle-pit, over which they were compelled to pass. The more impassable the cattle-pit may have been, the greater obstruction it would have been to the horses in their effort to escape from the train. However securely constructed the cattle-pit in question may have been, and however well kept in repair, it would have afforded the railway company no defence if its road ought to have been fenced where the horses entered upon it, that is, at Wesley station.
If counsel choose, and are permitted by the nisi prius court, to try a cause upon a theory outside of any issue formed by the pleadings, it does not follow that the cause must be reviewed in this court upon the same theory; on the contrary, such a trial is mis-trial, and can not be sustained by this court, except, perhaps, in a case in which a palpably just conclusion has been reached upon the real merits of the cause.
The petition for a relaearing is overruled.
Filed Jan. 26, 1887.