94 Ind. 111 | Ind. | 1884
Appellee recovered a judgment against appellant for the value of a horse killed by one of its trains, in. the town of Salem, in Washington county. The venue having been changed, the case was tried in Floyd county.
The complaint is in two paragraphs. The first charges a. negligent killing, without fault on the part of the plaintiff. The second -is based upon the statute, and charges a failure to-fence. The case is presented for review upon the evidence' alone.
Appellant’s counsel urge, with ability, that the judgment can not be maintained upon the first paragraph of the complaint, because of contributory negligence on the part of appellee. It will not be necessary for us to decide that ques-. tion, as we feel constrained to affirm the judgment upon the-second paragraph. The company, being liable under this-paragraph, is liable without reference to contributory negligence on the part of appellee. Louisville, etc., R. W. Co. v. Whitesell, 68 Ind. 297; Grand Rapids, etc., R. R. Co. v. Jones, 81 Ind. 523.
The horse approached the railroad upon Mulberry street. The railroad does not intersect the street at right angles. The street does not extend across the railroad. It seems to be admitted that the south line of the street intersects the railroad, so as to form' an obtuse angle.
If it appeared that the east side was left open for the accommodation of appellee, possibly a different result might have been reached.
Upon the question of the value of the horse the evidence is conflicting; we can not say that the amount allowed by the court is too large.
The judgment is affirmed, with costs.