5 Ind. App. 403 | Ind. Ct. App. | 1892
In this case the appellee recovered a judgment against the appellant in the Jay Circuit Court for killing a horse. The amended complaint filed in the cause consisted of three paragraphs. A demurrer having been overruled to each paragraph, a general denial was filed, and upon the issue thus joined the case was tried by a jury, and a verdict returned in favor of the appellee. Interrogatories were submitted to and answered by the jury. The appellant moved for a judgment upon the answers to the interrogatories submitted to the jury. This motion was overruled. The appellant then filed a motion for a new trial, which was overruled, and a judgment rendered upon the verdict in favor of the appellee. Proper exceptions were taken.
The assignment of errors is as follows:
1st. The court erred in overruling the appellant’s demurrer to the 1st, 2d and 3d paragraphs of appellee’s amended complaint, and each of them.
2d. The court erred in overruling the appellant’s motion for judgment on the answers of the jury to special interrogatories, notwithstanding the general verdict.
3d. The court erred in overruling the appellant’s motion for a new trial.
First in .order comes the alleged error of the court in overruling the demurrer to the several paragraphs of the complaint. In argument appellant’s counsel say that the 1st paragraph is bad, because “ it contains no averment that the killing of the horse occurred at a place where the road might have been fenced.” The brevity of this paragraph of the complaint seems to indicate a poverty in the English language which is not generally understood to exist. As it appears in the record the paragraph is as follows:
“ The plaintiff above named for his amended 1st para«
In an action of this kind, if it is alleged in the complaint that the railroad was not fenced at the place where the animal entered upon it, it is not necessary that it be also alleged, or shown that the railroad could have been properly fenced at such place.' Louisville, etc., R. W. Co. v. Hughes, 2 Ind. App. 68. If such is the fact, it is a matter of defence. Louisville, etc., R. W. Co. v. Kious, 82 Ind. 357; Jeffersonville, etc., R. R. Co. v. Lyon, 72 Ind. 107; Jeffersonville, etc., R. R. Co. v. Brevoort, 30 Ind. 324; Evansville, etc., R. R. Co. v. Mosier, 101 Ind. 597; Cincinnati, etc., R. W. Co. v. Parker, 109 Ind. 235; Chicago, etc., R. R. Co. v. Modesitt, 124 Ind. 212; Ft. Wayne, etc., R. R. Co. v. Herhold, 99 Ind. 91; Evansville, etc., R. R. Co. v. Tipton, 101 Ind. 197.
Manifestly, it was the intention of the pleader, judging from what little he has expressed in his complaint, to proceed under the statute requiring railroad companies to fence their roads or else become liable for animals killed by their machinery without regard to the question of negligence.
It is also insisted that the first and second paragraphs of the complaint are fatally defective for the reason that it is not averred therein that the horse was killed in Jay county. In
“Causes of demurrer must conform to the specifications of the statute. The specifications in the statute as to grounds of demurrer are separate and independent, and the causes assigned in the demurrer should conform thereto. If the pleading to which the demurrer is addressed is not subject to demurrer for the reason assigned it must be overruled, although it is demurrable upon other grounds.” See, also, Toledo, etc., R. W. Co. v. Milligan, 52 Ind. 505. In this case the reason assigned for the demurrer was not under the proper specifications of the statute to raise a jurisdictional
The objection to the action of the court below in overruling the motion for a judgment upon the answers of the jury to interrogatories notwithstanding the general verdict is not well taken. These answers were in harmony with and fully sustained the general verdict.
The jury in their general verdict expressly stated that their finding in favor of the plaintiff was upon the first paragraph of the complaint only. This rendered the issues joined upon the second and third paragraphs of the complaint wholly unimportant as far as the result of the trial was concerned.
Counsel, in argument, attempt to draw a distinction between the liability of a railroad company in a case where there is a failure to fence the road and one where there is a failure to keep the fence in repair after it is built. The statutory requirement is, that the road shall be “securely fenced in.” If no fence is built, or if one is built and suffered to become out of repair, so that it will not prevent stock from entering upon the road, then the road is not “ securely fenced in.” The jury in answer to the sixth interrogatory said that the appellant did not “ keep and maintain a fence sufficient to turn stock at the point where the horse strayed upon the track.” This responded to the allegation in the first paragraph of the complaint that the road was “ not securely fenced,” and fixed the liability of the appellant as far as this part was concerned.
Under the third assignment of error, the appellant insists that the evidence was insufficient to support either the gen-, eral verdict or the answers to the. interrogatories.' The rule is familiar, that this court will not review the testimony for the purpose of determining its weight in cases of conflict between witnesses. This is the province of the jury. If, upon any reasonable theory, the evidence fairly amounts to proof of what the jury finds, then this court will not and
Under the third assignment of error the appellant complains of the first, second, third and fourth instructions asked by the appellee at the trial and given by the court. Counsel say, in argument, that the appellee “ proceeded upon the theory that this was a right of action growing out of a failure on the part of the company to fence its right of way, while the evidence shows conclusively that if any right of action existed in favor of appellee it was for negligence in not keeping the fence in repair.” No other objection than this is urged against the instruction in question. As far as the object of this suit is concerned, we think counsel are attempting to make “ a distinction without a difference.” The question is, was the road at the point where the horse entered upon it “ securely fenced in ? ” The jury answered that if was not.
The judgment is affirmed, with costs.