53 Ind. App. 170 | Ind. Ct. App. | 1913
— The judgment in this case was rendered on a complaint for damages for the killing of five horses. The complaint was in two paragraphs the first of which proceeded on the theory that appellant’s “right of way, was not, on December 27, 1909, fenced in, neither was said railroad track on said day fenced in or otherwise enclosed, and on said day .no barriers or cattle-guards had been or were then established or maintained at the public highway crossing where said railroad right of way and tracks crossed the public highway so as to prevent horses and other live stock from straying on the right of way from adjoining fields or from the public highway.” This paragraph then avers that appellee’s horses entered on the right of way “where no cattle-guards or other barriers were then and there established or maintained by defendant so that horses and other animals could not stray thereon”; that the defendant operated a freight train over that part of its right of way, after said horses had entered thereon and that the locomotive and cars of such train then and there “struck and killed said horses. ’ ’
For the reasons hereafter indicated we need not set out the second paragraph. A demurrer to each paragraph of the complaint was overruled, to each of which rulings ap
In support of its claim that the court erred in its ruling on the motion for new trial it is very earnestly insisted by appellant that the evidence is insufficient to sustain the verdict because of a variance between the averments of the first paragraph of complaint and the proof offered in its sup
Judgment affirmed.
Note. — Reported in 101 N. E. 338. See, also, under (1) 2 Cyc. 1014; 3 Cyc. 388; (2) 31 Cyc. 358; (3) 33 Cyc. 1262; (4) 33 Cyc. 1269; (5) 31 Cyc. 684; (6) 33 Cyc. 1232, 1242; (7) 33 Cyc. 1230; (8) 33 Cyc. 1163, 1170; (9) 33 Cyc. 1294, 1295; (10) 3 Cyc. 347, 348; (11) 3 Cyc. 348; (12) 38 Cyc. 1815, 1817; (13) 38 Cyc. 1910. As to a railroad company’s duty to maintain fences and cattle-guards, see 21 Am. St. 289. On the question of the duty of a railroad company to keep cattle-guards in condition, see 36 L. R. A. (N. S.) 997. As to the measure of care of a railroad company to maintain fences once constructed, see 11 L. R. A. (N. S.) 228. For the liability of a railroad whose failure to maintain fences permits escape of livestock, which is killed or injured outside its right of way, see 29 L. R. A. (N. S.) 573. On the liability for injury to stock other than by trains, because of breach of statutory duty to fence, see 37 L. R. A. (N. S.) 1181.