Childers v. Louisville, New Albany & Chicago Railway Co.

41 N.E. 21, 12 Ind. App. 686, 1895 Ind. App. LEXIS 175

• Court: Indiana Court of Appeals
• Decided: June 11, 1895
• Docket: No. 1,605
• Status: Published

Opinions

Ross, J. —

Appellant brought this action against the appellee to recover for injuries to stock which entered on its right of way at a point where its fence was out of repair. The stock, after they got upon the right of way, became frightened at one of appellee’s trains, and, running along the railroad track, jumped into a trestle and were injured. They were not struck by the locomotive or cars.

It is insisted by the appellant that the appellee’s failure to maintain a fence along its right of way, as required by statute, constituted negligence and if his stock escaped by reason of appellee’s neglect of duty, and were injured, the company is liable to him therefor.

At common law every man is bound to keep his stock upon his own premises, and is a wrongdoer if they are permitted to' escape upon the lands of another.

Our statute, section 2831, R. S. 1894 (section 2637, R. S. 1881), changes the common law in so far that stock may be permitted to run at large if the board of commissioners have made an order allowing them to do so.

It is also provided by section 5323, R. S. 1894 (section 1077, E. S.), that railroads shall fence their right of way, and by section 5312, R. S. 1894 (section 4025, R. S. 1881), that if they fail to build and maintain a fence and stock gets upon the railroad track and is killed by the locomotives or cars, the company is liable therefor.

The right to recover for stock killed or injured which escape upon the railroad track by reason of the company’s failure to maintain fences accrues by virtue of the statute, and the statute, section 5312, supra, provides that the company shall be liable when the stock is killed or injured by its locomotive or cars. The Supreme Court, in construing this statute, have uniformly held that in order to recover there must be evidence that the stock was struck by the locomotive or cars. Ohio, etc., R. W. Co. v. Cole, 41 Ind. 331; Indianapolis, etc., R. W. Co.v. McBrown, 46 Ind. 229; Baltimore, etc., R. W. Co. v. Thomas, 60 Ind. 107; Croy v. Louisville, etc., R. W. Co., 97 Ind. 126; Louisville, etc., R. W. Co. v. Thomas, 106 Ind. 10; Jefersonville, etc., R. R. Co. v. Dunlap, 112 Ind. 93.

In the last case cited the court, in construing the act of 1885, section 5323, supra, said: “It is argued that under the above act, and the language above quoted, there maybe a liability although the ánimal may not be struck by the cars, or engine, but it is not suggested just how the damage to the animal may be done by the engineer, etc., except by running a train of cars upon it. The above quoted language of the act is confused and uncertain, but, after much thought upon the whole subject, we think that it was not the intention that railway companies shall be held liable for the injury or killing of animals, unless they are injured or killed by the cars or engines.”

Filed June 11, 1895.

The complaint is not good as stating a cause of action for a negligent killing, and we can not agree with appellant’s counsel that because the facts found tend to sustain the allegations of the complaint, and the court having overruled a demurrer to the complaint, judgment should have been rendered in his favor.

True, the court below overruled the demurrer to the complaint, but that fact is not conclusive that it states a cause of action. We have read the complaint and are convinced that it does not state a cause of action for a negligent killing, and the facts fail to establish one under the statute for a failure to fence.

Judgment affirmed.