105 Ind. 55 | Ind. | 1886
The appellant was the owner of a mare of the value of $150 on the 30th day of September, 1882, and on that day lent her to Thomas King to ride to Martinsville. King became intoxicated while at that place, and was in that condition upon his way from that town to the appellant’s house. The mare, with King as her rider, travelled along the public highway leading to the house of the appellant, but when she came to the place where the highway crossed the track of the appellee’s railroad, left the highway and travelled along the railroad for about eight hundred feet. An approaching train frightened her, causing her to run into a trestle work where the train ran upon her and killed her. There were no fences or cattle-guards at the highway crossing,, and nothing to prevent the mare from entering upon the railroad track. Upon a special verdict, setting forth these facts, the trial court gave judgment in favor of the appellee.
The appellant founds his cause of action entirely upon the statute requiring railroad companies to securely fence their tracks, and unless the facts stated in the special verdict make a case within the statute, he can not recover, for a plaintiff must recover’ upon the theory on which his complaint is framed or not at all. Leeds v. City of Richmond, 102 Ind. 372; City of Logansport v. Uhl, 99 Ind. 531 (50 Am. R. 109); Sims v. Smith, 99 Ind. 469, see p. 477 (50 Am. R. 99); Western Union Tel. Co. v. Reed, 96 Ind. 195; Western Union Tel. Co. v. Young, 93 Ind. 118; Mescall v. Tully, 91 Ind. 96, and cases cited.
Contributory negligence is not a defence to an action based upon the statute imposing on railroad companies the duty of fencing their tracks. The disregard of this duty is not simply negligence on the part of a railroad company, but it is a tort, for it involves the direct violation of a positive and ex
An owner who abandons his animal can not recover, although it entered upon the track of a railroad, and was killed, at a place where the company failed to perform its statutory duty by fencing its track. Knight v. Toledo, etc., R. W. Co., 24 Ind. 402; Jeffersonville, etc., R. R. Co. v. Dunlap, 29 Ind. 426; Corwin v. New York, etc., R. R. Co., 13 N. Y. 42, see opinion, Denio, J., p. 54.
Sound principle supports this rule. If an owner were permitted to voluntarily put his domestic animals in a situation where it was almost certain that they would be killed by passing trains, and yet, in the event that they were killed, recover from the railroad company, it would open the way to
If an owner rides his horse upon a railroad track, he must, under the reasoning of the cases to which we have referred, be deemed to have voluntarily exposed it to destruction. Such an act implies an assent to its destruction and indicates an abandonment of it. The omission of the railroad company to do what the law enjoins does not authorize an owner of property to place it on the track, for the Legislature can not be presumed to have intended that one who abandons his property shall nevertheless recover its value. To us it seems clear, that if the appellant had ridden the mare upon the defendant’s track, he would not have the slightest grounds upon which to base his claim for the value of his property. Such an act is something more than mere negligence; it is a wilful trespass upon the property of another, exposing the trespasser
In Jeffersonville, etc., R. R. Co. v. Dunlap, supra, it was said : “ So, very clearly, if the owner drives his animal upon the track, that it may be killed, or allows it to wander under such circumstances as justify the conclusion that he desires that result, it can not be supposed that the Legislature intended that the railroad company should be liable, on account of its failure to fence.”
We assume on the strength of these authorities, and the principles which we have stated, that, if the appellant had himself ridden the mare upon the track, he could not recover.
The borrower of the mare stood to the railroad company as the owner, for the latter had placed it in the borrower’s possession and control. We suppose it to be too clear for debate, that if the borrower had, while sober, purposely and deliberately ridden the mare upon the track in front of an approaching train, the company would not be liable. It would shock every just mind-knaffirm that a railroad company must pay for property placed in certain danger of destruction by the man to whom the owner had entrusted it. If the act of the person placed in possession of the property would, in the case supposed, relieve the company from liability, it must have that effect in all cases where the injury to the property is due to the wrongful act of the person in possession in voluntarily
King’s act in riding upon the track must be deemed to-imply consent to the destruction of the mare, unless the fact that he was intoxicated is a sufficient cause for holding that the presumption that he did not intend the natural consequences of his act can not prevail against him. it is clear upon principle and authority that it can not have that effect. Drunkenness is no excuse for crime, and if it can not be used as an excuse by one accused of crime it is not conceivable that it can be used where only property rights are involved to avert consequences which usually result from a wrongful or negligent act. Goodwin v. State, 96 Ind. 550, and cases cited. In Bloom v. Franklin Life Ins. Co., 97 Ind.478 (49 Am. R. 469), it was held that the representative of a man who met his death while committing an assault and battery, could not urge as a cause for averting a forfeiture of a policy of life insurance that the insured was drunk at the time he committed the unlawful act. Judge Cooley says: “ The fact that a tort was committed while a defendant was intoxicated is no excuse whatever.” Cooley Torts, 114. In another treatise it is said: “ Intoxication should not benefit any man.” Shear. & Redf. Neg., section 29, n.
The adjudged cases agree that intoxication will not excuse a man from the exercise of the care and diligence required of all citizens. Yarnall v. St. Louis, etc., R. W. Co., 75 Mo.
Judgment affirmed.