Jeffersonville, Madison, & Indianapolis Railroad v. Chenoweth

30 Ind. 366

• Court: Indiana Supreme Court
• Decided: November 15, 1868
• Status: Published

Opinion

Erazer, J.

The complaint in this 'case has the same defect that was urged in The I. & C. R. R. Co. v. Adkins, 23 Ind. 340. In that case the averment was held equivalent to, or at least implying, that the road was not securely fenced where the animals entered upon the railroad. I am free to admit that this'was a very liberal construction of a pleading when attacked by demurrer, and if the question were now here for the first time I should not so hold. I do not think that such looseness in pleading should be generally sustained. But that case has not been overruled, as the counsel for the appellant seem to suppose; and the majority of the courtis not prepared to overrule it, deeming it correct.

G. M. Overstreet and A. B. Hunter, for appellant. S. P. Oyler and I). W. Howe, for appellee.

There is nothing in the suggestion,that the words of the complaint, “not securely fenced as required by law,” allege only a conclusion of law. They aver the fact that the road was not securely fenced, and the subsequent words neither enhance nor diminish the force of the fact stated.

The judgment is affirmed, with ten per cent, damages and costs.