49 Ind. 119 | Ind. | 1874
Suit by tbe appellee against tbe appellant. Tbe complaint states, “ that, on or about tbe 16tb day of April, 1868, tbe defendant unlawfully and carelessly wounded, injured, and killed two work oxen of tbe plaintiff, by wrongfully and carelessly running against and over tbem a train of
Answer: 1. A general denial.
2. Set-off for five hundred cords of wood piled up along the railroad in Carroll county, Indiana, burned by the said plaintiff, fifteen hundred dollars.
3. That the oxen were breachy, and broke over the fence which the railway company had caused to be constructed at the place where the cattle got on the track, etc.; that the company employed the plaintiff to build the fence on both sides along the line of her road at the place aforesaid, from cattle-guard to cattle-guard; that the plaintiff built the fence and the company paid him therefor; that the plaintiff was fully advised of the character of the fence, and the breachy and vicious habits of one or both of said oxen; and that, notwithstanding the premises, he carelessly, negligently, and without regard to the safety of his cattle, placed the said oxen in a field alongside the railway, and separated from the same by said fence, etc., and thus the oxen broke in, etc., and came in contact with the locomotive, etc. Wherefore, etc.
4. That the plaintiff was' in the habit of laying down the fence, etc., which was built by the plaintiff, etc., and bad gates and bars therein, which plaintiff was in the habit of leaving open; and at the time in question the plaintiff left the fence
Reply in denial of the special paragraphs of the answer. Trial by jury, and general verdict for the plaintiff, with answers to several interrogatories propounded to the jury at the request of the defendant. Motion for a new trial) for judgment on the special findings, and in arrest of judgment overruled, and final judgment for the plaintiff.
Errors assigned in this court:
1. The complaint does not state facts sufficient to constitute .-a cause of action.
2. The court erred in overruling the motion for a new trial.
3. In refusing to render judgment for the defendant on the , ■special findings.
It is difficult to determine what we are to understand from the complaint. It was intended either as a complaint for the negligent killing of the cattle, or as seeking to recover on the ground that the railway was not securely fenced. But it is difficult to say which. As a complaint for the negligent killing of the cattle, it is defective, because it does not* negative the existence of contributory negligence on the part of the ■plaintiff. The Indianapolis, etc., R. R. Co. v. Robinson, 35 Ind. 380, and cases cited. The part of the complaint relating to the railway’s being unfenced is as follows:
“ That said cattle came on said railroad track at a point; therein where said railway was not securely fenced, and were there in charge and under the control of certain employes and agents of said defendant,” ete.
It is not very easy to perceive why it was stated in this part '©f the complaint that the cattle “ were there in charge and under the control of certain employes and agents of the defendant,” or what effect that statement can have in the cause. It is alleged in the complaint that the cattle came on the railroad track at a point where the road was not securely fenced, and that they were there injured by being run over by the locomotive, etc. With some hesitation, we hold that the complaint ia sufficient under the statute.
The defendant offered to prove, by a cross-examination of
The defendant, during the cross-examination of the plaintiff^ asked him certain questions as a foundation upon which to impeach him, by proving, by another witness, that he had made a certain material statement denied by him, and accordingly did prove that he had made such statement. Thereupon the court allowed the plaintiff, against the objection of the defendant, again to be called to the stand, and to repeat his denial of having made the statement sworn to by the defendant’s witness. This was made a ground of the motion for a new trial. We think that there is no doubt that a witness, under such circumstances, may be recalled, and may “ explain the nature, circumstances, meaning, and design of what he is proved elsewhere .to have said.” 1 Greenl. Ev., sec. 462. Perhaps the court should not allow the witness sought to be impeached to be re-examined merely for the purpose of again denying the making of the statement imputed to him. But we cannot think the allowance of this by the court is such an error as should reverse the judgment.
The third alleged error is not insisted upon in the brief of counsel.
The judgment is affirmed, with costs.
Petition for a rehearing overruled.