94 Ind. 601 | Ind. | 1884
Complaint in three paragraphs, by the appellee against the appellant, to recover damages for stock alleged to have been killed on the appellant’s railroad by its locomotives and cars.
Demurrer to first and second paragraphs of complaint overruled ; answer by general denial; trial by jury; verdict for appellee on first, paragraph of the complaint for $150, and for appellant on second and third paragraphs of the complaint; appellant’s motion for new trial overruled, and judgment on the verdict. Exceptions were taken to the several rulings, and the same are assigned for error.
The first paragraph of the complaint alleged the killing of the appellee’s mare at a place upon the appellant’s railroad where it was not securely fenced. It is objected to this paragraph that it does not aver that the animal was killed by the appellee's locomotive or cars, nor that, the injury occurred in Washington county. These averments, however, have escaped the attention of the appellant’s counsel, as they occur in the first paragraph of the complaint with much particularity.
As the verdict was for the appellee upon the second paragraph of the complaint, there is no available error in the overruling of the demurrer thereto. If a pleading at the trial is found not to be true, the error, if any, of overruling a demurrer to it, is rendered harmless. State, etc., v. Julian, 93 Ind. 292.
The causes for a new trial, as set out in the motion, were that the verdict was not sustained by sufficient evidence", and that the damages assessed were too large. The evidence quite strongly supports the verdict, and the amount of the recovery. Judgment affirmed at the appellant’s costs.
