28 Ind. 429 | Ind. | 1867
— Suit by Stephens against the railroad company for killing fi horse. The complaint avers that on, &c., at the county of Boone and State of Indiana, the defendant, then using and running and controlling The Indianapolis and Cincinnati Bailroad, did then and there run and drive their locomotive and train of cars against and over one dark brown gelding horse, the property of the plaintiftj of the value of $200, thereby.killing the horse; and that the railroad was not then and there securely fenced in by the company nor any other person in 'their behalf. The appellant demurred to the complaint on the grounds :
1. That the court had no jurisdiction of the person of the defendant.
2. That the complaint did not state facts sufficient.
The demurrer was overruled, and this is assigned for error.
It is contended that the appellant’s road terminates at Indianapolis; that the company owns no road running through Boone county, and that this court will take judicial knowledge of that fact. There is nothing in the law that prohibits the appellant from running and operating a railroad through the county of Boone, and whether it does so or not is a fact to he averred and proved as any other fact. "We think the court below committed no error in overruling the demurrer.
The appellant answered by the genei’al denial. Trial by the court; finding for the plaintiff; motion for a new trial overruled. The appellant excepted, and sets out the evidence in a bill of exceptions, and contends that there is no proof that the horse was killed iin Boone county. The proof is, that the horse was killed about a half mile northwest of Hazelrigg station. It is urged that the court will not take judicial knowledge of the geographical position
The judgment is affirmed, with five per cent, damages and costs.
