50 Ind. 349 | Ind. | 1875
Suit by the appellee against the appellant, to recover the value of a mare and a horse killed by the locomotive and cars of the company. The ground of liability alleged is, that the railroad, at the place in question, could have been, but was not, fenced by the company. The point where the animals were killed was about one-fourth of a mile west of the town of Holton, in Eipley county, in which county the
There was a demurrer to the complaint, which was overruled, and an answer of general denial filed.
The trial was by a jury, and there was a verdict for the plaintiff.
A motion for a new trial was made by the defendant, and overruled by the court, and there was final judgment.
The errors assigned are the overruling of the demurrer to the complaint, and the refusal to grant a new trial.
The first alleged error is not argued or urged by counsel. We do not see any objection to the complaint.
The motion for a new trial brings in question the sufficiency of the evidence. It is evident that the animals were killed by the cars, but it does not appear where they got on the road. The case is before us on the evidence upon the questiomwbether or not the company was required to fence the road at the point where the animals were found dead. Extending through the town of Holton, and for a short distance on each side, the company has a side-track. The railroad runs "east and west, or nearly so, and the side-track is - on the south side of the main track. At or near the east end of the town, there is a public highway, called the Versailles road, which crosses the railroad at a sharp angle. The place where the horses were killed is west of this crossing, at a point where the highway is north of the railroad. The company has a depot west of the crossing, on. the north side of the road.
James D. Clark testified: “ Have been in appellant’s employ about five years, and am well acquainted with the location of the ground and road-bed where the horses were killed; on the south side of the railroad, at that point, and extending a considerable distance both east and west, there is a side-track eighteen hundred and sixty-eight feet long, which runs through the town of Holton; west of the depot is a vacant lot, used for storing lumber and staves and for loading and unloading cars; west of this lot is an alley, running from the old Versailles road, north of the railroad, to a street south of the rail
Cross-examined: “ The side-track, from the alley west to a short distance beyond the saw-mill, is an embankment, starting at about two feet above the level at the hay-press, and sloping downward to about ten feet high at the culvert, and from that point upward to the level of the ground, a short distance west of the saw-mill; the platform from which cars are loaded at the hay-press is about five feet higher than the side-track; ears are loaded at the saw-mill from scaffolding raised above the track, which is removed when not needed for that purpose.” Thomas G. Van Meter testified: “Am agent of appellant at Holton, and have been about four years; am familiar with the location of railroad there, and adjoining grounds; the east end of the side-track commences east of the town of Holton, runs through it, and to a considerable distance west of said town; the space between the alley and the hay-press has been used for piling staves and lumber, and for loading the same on the cars; lumber has also been piled for shipping purposes between the hay-press and side-track; west of the mill are some lots used occasionally by the company for storing and shipping lumber, staves, and wood; the side-track west of the alley is used for loading and unloading cars, and switching; cars are left by trains and taken from the side-track at all places west of the alley; to fence the road at this point, a cattle-guard
Cross-examined: “ The ground on the south side of the railroad, from the alley to the mill, is rolling, descending from there to a short distance east of the mill; the side-track is on an embankment the entire distance from the alley to the mill; it is about two feet high at the press, about ten feet at the culvert, and from three to four feet at the mill;' there is a platform from the press to the side-traek, about five feet higher than the side-track; a fence could be built under it and not interfere with loading from the press; scaffolds are built at /the mill to load lumber on the cars, and they are built higher than any ordinary fence, and are removed when not required for loading.”
The dead animals were found at the side of the road, east of the saw-mill and west of the hay-press.
The court gave the jury the following instruction on this branch of the case:
“ 2. A railroad company is not bound'to build and maintain a fence at a point in a town or village, if by so doing it will obstruct or interfere with the free use of a public street in the town or village; and it is not bound or required to build and
This instruction was correct. There was no evidence conflicting with that which we have set out. It appears to us that it is unreasonable to require a railroad company to fence the track of its road under such circumstances. The court should have set aside the verdict and granted a new trial.
The judgment is reversed, with costs, and the cause remanded for a new trial.