Louisville, New Albany & Chicago R. W. Co. v. Cahill, 63 Ind. 340

63 Ind. 340 | Ind. | 1878

Fiblack, J.

-This was a suit by George Cahill, against the Louisville, New Albany and Chicago Railway Company, for killing two horses at a point on the line of the defendant’s railway, at which it was not securely fenced. The defendant answered in three paragraphs:

1. The general denial;

2. That the plaintiff turned his said horses loose upon the streets, highways and unenclosed commons in and about the city of Greencastle, without any care or control over such horses, in violation of an ordinance, of said city, by reason of which said horses wandered and strayed upon the defendant’s railway track and were killed, without any negligence on the part of the defendant, such killing being the result of gross negligence on the part of the plaintiff’;

3. That the defendant’s road passes through a portion, of the city of Greencastle, where the plaintiff’ resides, and-that the plaintiff voluntarily turned the horses loose near said-road, and permitted them go upon and remain on said road, where engines and cars were passing and repassing, by means of which the horses were run over and killed, being the result of gross negligence on the part of the plaintiff, and without the fault of the defendant.

Demurrers were sustained to the second and third paragraphs of the answer.

There was a trial, a verdict for the plaintiff, and judgment on the verdict.

Errors are only assigned upon the decisions of the court sustaining the demurrers to the second and third paragraphs of the answer.

It has been frequently decided by this court, that, where a railroad company is sued for killing animals at a point on its road where it might be, but is not, securely fenced, contributory negligence is no defence to the action. The Toledo, etc., R. W. Co. v. Cory, 39 Ind 218; The Toledo, etc., R. W. Co. v. Cary, 37 Ind. 172; The Jeffersonville, etc., R. R. Co. v. Ross, 37 Ind. 545; The Toledo, etc., R. W. Co. v. Weaver, 34 Ind. 298; The Jeffersonville, etc., R. R. Co. v. O’Connor, 37 Ind. 95; The Cleveland, etc., R. W. Co. v. Crossley, 36 Ind. 370; The Bellefontaine R. W. Co. v. Reed, 33 Ind. 476; The Indianapolis, etc., R. R. Co. v. Parker, 29 Ind. 471.

The second and third paragraphs of the answer before us were but answers of contributory negligence in different forms.

The court, therefore, did not err in sustaining the demurrers to those paragraphs.

The case does not fall within the rule laid down in the case of Knight v. The Toledo, etc., R. W. Co., 24 Ind. 402, as in that case, it was held that the defence amounted to more than contributory negligence. See, also, The Jeffersonville, etc., R. R. Co. v. Dunlap, 29 Ind. 426.

The judgment is affirmed, with costs.