61 Ind. 287 | Ind. | 1878
Suit by the appellee to recover for stock killed.
The complaint is as follows :
“Plaintiff complains of the Jeffersonville, Madison and Indianapolis Railroad Company, a corporation under the laws of the State of Indiana, and the Pennsylvania Company, a corporation under the laws of the State of Pennsylvania, and for cause of action says, said first named defendant is now, and was on the 4th of July, 1875, the owner of a line of railroad running into and through the county of Jefferson, in the State of Indiana, and said
A separate demurrer to the complaint by each defendant, for want of facts, was overruled, and exception taken.
Answer in general denial.
Trial by jury; verdict and judgment, over a motion for a new trial, for the plaintiff.
The court erred in overruling the demurrer of the Pennsylvania Company to the complaint. It did not contain the material averment, that the lessee, the Pennsylvania Company, was running the Jeffersonville, Madison and Indianapolis railroad in the name of the latter road. The Cincinnati, Hamilton and Dayton R. R. Co. v. Bunnell, ante, p. 183.
The case of The Indianapolis, etc., R. R. Co. v. Warner, 35 Ind. 515, is not in point. In that case the complaint did not show the relation of the two companies.
The court erred in overruling the motion for a new trial by said company.
The court erred in overruling the motion for a new trial on the part of both defendants.
The damages were excessive. The suit was for the recovery of the value of two mules, of about equal value. One only of the mules was struck by the locomotive or train. The two were strongly tied together by a leather strap about their necks. The engineer running the train; the only witness who saw the collision, testified: The mules “ were tied together. I struck one of them, and only one; struck the one in track.”
On cross-examination, he said: “I reversed the engine the instant I saw them. One did not get on track; was on the right-hand side,” etc.
The mule which was struck was dragged a distance on the road, and the mule not struck, being tied to it, as has been stated, was dragged after the one struck, and thus injured. On this point, there is no conflict of evidence. It is settled law in this State, that, under our statute on the subject, an animal killed or injured by a railroad train, to render the road liable for its value, must be struck by some part of the train by which it is claimed that it was killed or injured. The Indianapolis, etc., R. W. Co. v. McBrown, 46 Ind. 229; The Louisville, etc., R. W. Co. v. Smith, 58 Ind. 575. And this rule will operate in a ease' where two or more animals are tied together and placed in proximity to the track of the railroad, as were those in this case, however it might be in others. Here, the owner tied his mules together and turned them, so tied, onto the railroad track to'graze, and left them for a day: Each was thus disabled to act with its natural freedom in avoiding danger. The tying of the two together in the manner and for the purpose it was done in this case did xiot make one mule of the two. It is not necessary for
- The judgment is reversed, with costs, and the cause remanded, etc.