The questions presented by these records are identical. The pleas in the one case are but copies of the papers filed in the other, differing alone in the date of the occurrence, and the value of the animals killed. The rulings of the court were the same in both cases. A statement of the pleadings, the judgment and the facts in the one case will therefore be sufficient.
The appellee instituted a suit for the value of an animal killed by the locomotive of the appellant, where the railroad was not fenced. The defendant answered by one paragraph, to which a demurrer was sustained. Defendant then filed three additional paragraphs to his answer, to the third of which a demurrer was sustained. Trial upon the other issues, and judgment for the plaintiff.
The complaint charges that said railroad company, on the 18th day' of February, 1864, was running a train of cars on said railroad, in Dearborn county, Indiana; that said locomotive and train struck and ran over and killed a brown mule, belonging to said plaintiff, of the value of $300; and that said railroad was not, at said time and place where said mule was killed, fenced in by said defendant, in manner and form as in the statute provided.
The first and third paragraphs of the defendant’s answer are substantially the same; the third being intended to be a little more specific, and it will, therefore, only be noticed. This paragraph alleges, “that said mule was killed on
The first act of the legislature on the subject of railroad companies fencing their roads, will be found in the laws of 1853, page 113; the next, amendatory of the former, will be found in the laws of 1859, page 105, and the last, which repeals all former laws, will be found in the laws of 1863, page 25.
This court, in the cases of The M. & I R. R. Co. v. Whiteneck, 8 Ind. 217, The I. & C. R. R. Co. v. Townsend, 10 Ind. 38, The New Albany & Salem R. R. Co. v. Tilton, 12 Ind. 3, and Same v. Maiden, id. 10, held “ that the act of March 1, 1853, is in the nature of a police regulation, designed to promote the security of persons and property passing over the road, and hence, though the owner of the animal be not an adjoining proprietor,- and be guilty of negligence in permitting it to stray upon land adjoining the road, ho may recover, if the company has failed to comply with the requirements of the statute.”
The legislature, with this construction given to tho’act by repeated decisions of this court before it, has carefully
The judgments are affirmed, with 3 per cent, damages in each case, and costs.