Fort Wayne, Muncie, & Cincinnati Railroad v. McClurg

47 Ind. 138

• Court: Indiana Supreme Court
• Decided: May 15, 1874
• Status: Published

Opinion

Downey, J.

This was an action by the appellee against the appellant, to recover the value of a cow alleged to have been killed on the road of said company where it could have been, but was not, securely fenced. On a trial by jury, there was a verdict for the plaintiff, motions for a new trial and in arrest of judgment made by the defendant overruled, and judgment on the verdict.

Two errors are assigned:

1. The overruling of the motion for a new trial.'

2. Overruling the motion in arrest of judgment.

We see no valid objection to the complaint, and this point is not urged in the brief of counsel.

The evidence is carelessly set out in the bill of exceptions. We think, while its shows with reasonable certainty that the cow was killed on a railroad, by being struck by a train of cars, it does not show that the road was the road of the Fort. Wayne, Muncie, and Cincinnati Railroad Company.

The judgment is reversed, with costs, and the cause is remanded, for a new trial.