119 Ind. 39 | Ind. | 1889
This is an action brought by the appellee against the appellant for the value of two mules which, it is alleged in the complaint, entered upon the railroad track of the appellant at a point where it was not fenced, but might have been fenced, and while upon the track were run against and over by an engine and train of cars run and operated by the employees of the appellant, and one of them was killed and the other wounded and greatly injured, and that they were each of the value of $150.00, to the damage of the appellee in the sum of $250.00.
The cause was tried by the court without the intervention of a jury. The court made a special finding of facts, and stated its conclusion o'f law thereon.
The special finding of facts and conclusion of law are as follows :
“ 1st. The plaintiff is a citizen of Washington county, Indiana, and on the 12th day of October, 1885, was the owner of the two mules described in the complaint, and that on said*40 12th day of October, 1885, the .defendant was and now is a railroad corporation,"owning and managing the Louisville, New Albany and Chicago Railway, which railway runs in and through said county of Washington.
“ 2d. And on said day a train owned and run by said defendant upon said railway, and controlled by the employees and servants of said defendant, ran against and upon said mules, which had entered in and upon the track of said defendant’s road, and killed one of said mules and so injured the other as to render it worthless.
• “ 3d. That said mules entered upon the track of defendant’s road at a point in said county where said railroad crosses a cart-way, or private way, known as McQuiddy’s Crossing, and from said crossing passed east upon said track.
“ 4th. That there were no cattle-guards at said crossing, or any other obstacle to prevent said mules from passing from said private way to and upon said railroad track.
“ 5th. The railroad, at the point where the mules entered, runs very nearly east and west, and the mules went eastwardly after they entered upon the track.
“ 6th. That said mules, after entering upon said track, grazed along the same for some time and then ran rapidly eastwardly until they came to the cattle-guard across said railroad at Garrott’s farm in said county, which cattle-guard the mules got over, and when east of said cattle-guard they were in a space enclosed by fences on each side and a cattle-guard at each end of said fences, which fences and cattle-guards enclosed said railroad. That the two cattle-guards on the Garrott land are between one quarter and a half mile apai’t.
“ 7th. At a point forty or forty-five rods from the west cattle-guard on Garrott’s land, a train on said defendant’s road overtook, struck and killed one of said mules, which mule was of the value of one hundred and twenty dollars. The train that struck said mule was going south.
“ 8th. That about forty rods from the point where the*41 first mule was struck, and at the east cattle-guard, the second mule was struck by a train of defendant and carried over the cattle-guard, which mule was crippled by such collision with the. train in such manner as to render it of no value. 'That said mule, before said injury, was of the value of one hundred and thirty dollars.
“ 9th. That at the west cattle-guard at Garrott’s there is a highway crossing said railroad, directly west of said cattle-guard. That said cattle-guards were in good repair and were connected by wing fences to the fences running on each side .of said railroad between said cattle-guards.
“ 10th. That on the night said mules were killed and injured, four trains, two passenger and two freight trains, went ■south upon said railroad, and over the portion of the road where said mules were struck by the engine or cars ; said passenger trains were about one half hour apart. That said .mules escaped from the enclosure of the plaintiff the night they entered upon said track.
“ 11th. That said mulé was killed and the other injured ■in Washington county, Indiana, were the property of the plaintiff, and at the place where said mules entered upon the track of defendant it was not, but might have been, securely fenced, and said mule was killed and the other injured by ■a train of cars belonging to said defendant and running upon ■said defendant’s road.
“ And as a conclusion of law the court states upon the facts so found that said plaintiff is entitled to recover the sum of two hundred and fifty dollars.”
The appellant excepted to the conclusion of law, and assigns as error that the court erred in its conclusion of law.
By the act of the Legislature, approved April 8th, 1885, persons owning tracts of land separated by the right of way of a railroad company are authorized to construct and maintain wagon and drive-ways across such right of way of said company, and by said act railroad companies are exempted from liability for damages for animals killed or injured on
It appears from the special findings of facts in this case, that the mules entered upon the track at a point where the railroad crosses “ a cart-way or private way, known as Mc-Quiddy’s crossing.” The construction we place upon this finding is, that it was at a private farm crossing, such as is authorized by the statute, where the mules entered upon the track. No other crossings are permitted by law, except public streets and highways. The crossing is not designated in the finding by the same term used in the statute. The statute uses the words “ wagon and drive-ways.” A “ private way or cart-way” means, as we think, a “ drive-way,” and the special findings do not show that the servants of the company were guilty of any negligence which caused or contributed to the killing of the mules. Hunt v. Lake Shore, etc., R. W. Co., 112 Ind. 69.
We are, therefore, of the opinion that the facts found by the court did not entitle the appellee to recover, and we might add further, that, independently of .the question of the mules entering upon the track at a private crossing, the facts found show that after the nmles entered upon the track, they, of their own volition, strayed along the track until they came upon a public highway where the railroad company was not required to fence its track, and from such highway the mules, without being driven by approaching locomotives or cars, or by reason of any fault on the part of the railroad company or its employees, of their own accord entered upon the track where it was properly and securely fenced, crossing over a proper cattle-guard, which was at the time in good condition. To say the least, these facts ren
The only exception reserved and error assigned is as to the conclusion of law stated by the court, and it would seem that the statute exempting the appellant from liability was not considered in the trial of the cause. For that reason the facts may not have been so fully stated by the court as they would have been had the court at the time had in mind the statute, and the findings of fact may convey a different idea to this court than was intended by the court trying the cause. We are of the opinion that justice will be best sub-served by ordering a new trial in this cause. Buchanan v. Milligan, 108 Ind. 433.
The judgment is therefore reversed, at the costs of appellee, with instructions to the court below to set aside the judgment and grant a new trial, and for further proceedings not inconsistent with this opinion.