Daniels sued the railway company to recover the value of five head of cattle, viz: four heifers and one cow, alleged to have been killed by the defendant’s locomotive and cars, while running on her railway, at a point where it was not fenced. The complaint consists of two counts, each is founded on the statute, and is in the usual form. The only difference between them is, that in the first the cattle are described as of the full blood, but in the second as common stock. At the proper time the defendant moved that the plaintiff be ruled to elect on which count he would go to trial, and. in default of such election, that the second count be stricken out, the two being, in effect, identical. This motion was overruled ; thereupon the defendant demurred to the complaint, but her demurrer was overruled. These rulings are not erroneous. ‘We have looked into the complaint and find it, in point of form and substance, unobjectionable. And the difference between the counts, to which we have referred, is, it seems to us, sufficiently essential.
Defendant answered: 1. By a denial. 2. That the road at the place where, &c., had been securely fenced; that a fire originating by accident had communicated to the fence and destroyed a part of it; that the defendant within a reasonable time, viz: twenty-four hours, after notice of its destruction, repaired and securely fenced the road at the place where,
The statute upon which this action is based contains the following provisions :
“ Sec. 3. On the hearing of the' cause the court or jury hearing the same shall give judgment for the value of the auimal or animals destroyed or iujury inflicted, without regard to the question, whether such injury or destruction was the result of willful misconduct or negligence, or the result of unavoidable accident.”
“ Sec. 4. This act shall not apply to any railroad securely fenced in, and such fence properly maintained by such railroad company.” Acts 1853, p. 113; Acts 1859, p. 106.
Under these provisions it is insisted that the defendant is liable, though the fence had been destroyed by “unavoidable accident,” and was repaired within a reasonable time after its destruction. ' This position seems to be incorrect. The statute, as we construe it, does not refer to such “unavoidable accident” as may cause the destruction of the fence, but to such as occur on the road when it is not securely fenced, or when it is fenced and such fence not properly maintained.
The evidence is upon the record, and we have examined it carefully. It is to some extent conflicting, though its weight, it seems to us, does not sustain the findings of the jury. There was, however, some evidence which tended to support the verdict, and we would not, therefore, be inclined to reverse on the ground that it was insufficient. But there is a bill of exceptions in which it is alleged that the defendant, “ before the evidence was commenced, asked and required of the Court, verbally and in writing, that the charge to the jury, and every modification thereof, should be in writing,” and that notwithstanding the requirement thus made, the Court proceeded to charge the jury verbally, in the words following : “ This is an action brought against the defendant to recover the value of the property alleged by the plaintiff" to have been killed on said road. It has been intimated by the defendant’s counsel that you may disregard the instructions of
The code says: “ When the argument of the cause is concluded, the Court shall give general instructions to the jury, which shall be in writing, and be numbered and signed by the judge, if required by either party.” 2 R. S. (G. & H.) page 198, sec. 324. This provision seems to be imperative. Indeed we have often decided that when the Court has had timely notice of the desire of one of the parties that a written charge only shall be given to the jury, it is error to give a verbal charge, or if written to accompany it with verbal modifications or explanations. Laselle v. Wells, 17 Ind. 33; Kenworthy v. Williams, 5 Ind. 375; Rising Sun Turnpike Co. v. Conway, 7 id. 187. But the appellees argue that the spirit of the law has been complied with; that its purpose was to give the party, requiring instructions to be in writing, the benefit of a record containing the words used by the Court; that, in this instance, the judge, at the very time the objection was made, set out, in a bill of exceptions, the exact words used by him in his verbal charge, and hence the plaintiff has no right to complain. We are not inclined to adopt that argument. The statute, as we understand it, requires the Court, when asked for written instructions, to reduce them to writing, and then give them, as written, to the jury. This construction of the statute, in its strictness, as a rule of practice, imposes no hardship, and were the rule once relaxed it.is easy to see that the object of it would be defeated. The Turnpike Co. v. Conway, supra.
We think that the Court, in charging verbally when requested to charge in writing, committed an error for which there should be a reversal.
Per Curiam. — The judgment is reversed, with costs. Cause remanded.