This action was brought by the appellee against the appellant, to recover the value of a cow injured
1. Overruling the defendant’s motion to set aside the service of the process.
2. Rejecting the second paragraph of the defendant’s answer.
3. Overruling the defendant’s motion fora new trial.
This action was commenced in the common pleas. The third section of the act authorizing such actions, 3 Ind Stat. 415, authorizes the service of the summons by copy on any conductor on any train on the road passing into or through the county. The return to the summons in this case does not show such a service, but after it was amended is as follows : “ Served by reading to Mr. Vandusen, who is the local freight agent of said defendant, at the city of Lafayette, Indiana, February 10th, 1870.” Signed by the sheriff. It is clear that the service is not good under section 30 of the civil code. 2 G. & H. 57. That contemplates cases where a corporation, company, or an individual has an office or agency in the county for the transaction of business, and the suit grows out of or is connected with the business of such office or agency. Then the service may be upon any agent or clerk employed in the office or agency. Section 36 of the civil code is as follows: “ The process against a corporation may be served on the • president, presiding officer, mayor, chairman of the board of trustees, or if its chief officer is not found in the county, then upon its cashier, treasurer, secretary, clerk, general or special agent, or, if it is a municipal corporation, upon its marshal, or, if it is an incorporated library company, upon its librarian; if none of the officers aforesaid can be found, then upon any person authorized to transact business in the name of such corporation.”
This section appears to make three classes of officers or
The act of March 4th, 1853, found in the notes to 2 G. & H. 62, as amended in Acts 1861, Special Session, p. 78, is as follows: “That all writs, warrants, or other process issued, or to be issued, from any court of competent jurisdiction in this State, against the president of any railroad company whose principal office is not within this State, may be served on any officer, director, conductor, attorney, or general agent of said company, and said service shall be as binding and of the same effect as if the same had been served upon the president of the company: Provided, however, that process shall not be served upon any officer, director, conductor, attorney, or general agent who may be plaintiff in the suit, or who may have any interest therein against such company. Provided, furthér, that at least fifteen days notice shall be given of the time and place of the pendency of said suit.” The persons on whom process may be served under this section are all of one grade, and service on any one of them is good without reference to whether others
The second paragraph of the answer attempts to set up facts and circumstances to show that the appellant was not bound, to fence or could not legally fence the railroad at the point where the injury to the animal occurred, which is alleged to-have been at a point ■“ inside the city of Lafayette as well as within the limits of the defendant’s depot grounds, switches, side tracks and work yard as occupied, used, and operated by defendant as such and continued as such from her depot building eastward for a great distance, to wit, to the corporation limits of the city,” etc. It is also stated, that in consequence of these facts, the company was not bound to fence the road and could not lawfully do so. • It is difficult to see from these statements where the animal was injured. But conceding that the paragraph shows that the injury occurred at a point where the company could not fence, we still think there was no error in striking it out. The general denial was pleadéd, and under the issue formed by it the defendant gave evidence as to whether the road could or could not be fenced. We do not find that it has been the
Just where the animal was injured, we can not tell from the evidence. The place was somewhere between Union street and Greenbush street in the limits of the city of Lafayette, but just at what point on the road between the two streets is not shown. That the place was within the city is not sufficient to excuse the company from fencing. This was so decided in The Jeffersonville, etc., Railroad Co. v. Parkhurst, 34 Ind. 501, and The Toledo, Wabash, and Western Railway Co. v. Howell, 38 Ind. 447. The map appended to the bill of exceptions and certified to be part of it, and the testimony in the case, show large blocks of ground of ten and twenty acres or more, on each side of the road, which were used for farming, within the points to which we have referred. The cases to which we have just alluded hold that under such circumstances the railroad' company is liable for stock killed where the road is not fenced.
It appeared from the evidence that there was a fence along the road at the point in question, but the parts of the fence joining up to the cattle-guards at Salem street and at Green-bush street had been taken away, as it seemed, by the employees of the company, and that the cow got on the road at one or the other of the openings in the fence thus made and went along the road to the place where she was injured. On the trial of the cause, the plaintiff was allowed, over the objection of the defendant, to prove that the company was then repairing, or had lately repaired or replaced these parts of the fence. This ruling of the court was assigned as a reason for a new trial, and is urged here as an error. We think the evidence was properly admitted, to show that the company regarded the place as one where it might legally erect a fence. We do not find any error in the record.
The judgment is affirmed, with five per cent, damages and costs.