60 Ind. App. 332 | Ind. Ct. App. | 1915
Appellant brought this action to recover the value of certain horses and mules alleged to have been run into and killed by one of appellant’s passenger trains.- ft.was alleged that the animals escaped from appellee’s pasture to appellant’s right of way and track without the knowledge of appellee, and that they so escaped and were subsequently killed without any fault or negligence on his part. The complaint declares on a common-law rather than a statutory liability, and proceeds on the theory of negligence.' It' is alleged in substance that appellant’s employes in charge of the train that killed the animals had received prior notice from certain of appellant’s employes and officials that the animals were on the right of way and track at or near the point where they were subsequently killed, and that they were warned to be on the lookout for the animals while approaching and running by such point. The negligence charged is to the effect that appellant by its said employes in charge of and operating the train with such knowledge negligently ran the train by such point at the great and unusual speed- of thirty-five miles per hour, and negligently failed to keep a lookout for the animals at such point and negligently chased them along the track without slackening speed or ringing the bell .or sounding the whistle for a distance of more than 700 feet where the configuration ‘of 'the track' and right of way was such that they could not escape and thereby ran upon and killed them'.
Appellant does not contend that the animals escaped from appellee’s enclosure to the right of way and track by reason of any contributory negligence or want of reasonable care on appellee’s part, nor is it contended that appellant was free from negligence in the occurrence in which the animals were killed. In support of the assignment that the verdict is not sustained by sufficient evidence, appellant’s argument may be summarized as follows: (1) That under his complaint appellee seeks to enforce a common-law liability, growing out of negligence, and that therefore no statute under which a railroad company is chargeable for injuring stock can be considered. • (2) The evidence shows that the animals were trespassers and that therefore appellant is not liable for injury inflicted on them through negligence; that to charge appellant, the killing of the animals must have been wilful.
In tbe Dennis ease cited by appellant, a mare which tbe owner kept in a securely fenced field adjoining tbe track of tbe railroad company escaped therefrom, and entered upon tbe track, at a point where it was securely fenced. She ran down tbe track in front of an approaching train, and was caught and killed by it at a cattle guard. Tbe decision turns on a special finding from which there was absent tbe element that tbe engineer or fireman saw tbe mare. Tbe court said: “It is to be remembered that tbe train was rightfully moving along tbe track of which tbe appellee was tbe exclusive owner, that it was fenced as tbe law requires, and that tbe mare was wrongfully on it. Tbe employes of appellee were not under a duty to an owner to see animals wandering on a track securely protected, and here we are concerned only with their duty to the owners of wandering animals. Whether tbe appellee would have been liable bad tbe engineer or fireman seen tbe mare and taken no measures to stop tbe train or frighten her from tbe track, we need not decide, for it does not appear that they saw
Chicago, etc., R. Co. v. Ramsey (1907), 168 Ind. 390, 81 N. E. 79, 120 Am. St. 379, while reversed for defects in the special finding, is applicable here also, at least to the extent that the Supreme Court there recognizes the doctrine that even where cattle are wrongfully on’a railroad track the duty to exercise care towards them may grow out of the situation, if known, a violation of which, will constitute negligence. It appears from the opinion in that case that the second paragraph of complaint, like the complaint here, was based on the alleged negligence of the railroad company’s servants in the
Note. — Reported in 109 N. E. 70. As to trespassing animals, see 81 Am. St. 446. As to the duty of a railroad to keep a lookout for animals on the track on fenced roads or where no duty to fence exists, see 3 Ann. Cas. 591. As to the duty of a railroad to blow whistle or give other warning to animal on track, see Añn. Cas.' 1915 B 462. See. also, under (1) 33 Cye 1224; (2) 33 Cye 1309; (3) 3 Cyc 303; (4) 3 Cyc 348; (6) 17' Cye 285; (7) 17 Cye 276.