93 Ind. 245 | Ind. | 1884
— Action by the appellee against the appellant to recover damages for killing appellee’s horse by the appellant’s locomotive and cars. The venue on the appellant’s motion was changed from the Montgomery Circuit Court to the court below. The trial resulted in a finding and judgment for the appellee. The overruling of the appellant’s demurrer to the appellee’s complaint is the only ruling complained of.
The complaint charged that-the railroad was not fenced at the place where the animal entered upon the track and was killed. This was sufficient. Detroit, etc., R. R. Co. v. Blodgett, 61 Ind. 315; Terre Haute, etc., R. R. Co. v. Penn, 90 Ind. 284. If the railroad could not properly have been fenced at the place in question, that was a matter of defence. It was not necessary for the complaint to allege that it could have been fenced at such place. Fort Wayne, etc., R. R. Co. v. Mussetter, 48 Ind. 286; Jeffersonville, etc., R. R. Co. v. Lyon, 55 Ind. 477; Jeffersonville, etc., R. R. Co. v. Lyon, 72 Ind. 107; Terre Haute, etc., R. R. Co. v. Penn, supra.
The demurrer to the complaint was properly overruled.
Affirmed, at appellant’s costs.
