Jeffersonville Railroad v. Applegate

10 Ind. 49

• Court: Indiana Supreme Court
• Decided: January 5, 1858
• Status: Published

Opinion

Hanna, J.

This was an action by Applegate against the railroad company, for injuries to a mare, the property of said Applegate, by running against and striking her with the cars, &c., of said company. The evidence shows there was no negligence in the company other than that of not having their road fenced. It also shows that the mare was feeding about twenty yards from the track of the road, and as thq locomotive and train approached, she started and ran upon the track about thirty feet before the locomotive. She then received the injury. The plaintiff was not the owner of the land abutting upon the road at that point. The mare was in the habit of running at large in that vicinity, and was turned out by the plaintiff for the purpose of her getting water and food. The road of defendants was not fenced. No evidence was offered that the board of county commissioners had passed any order allowing such animals to run at large. Applegate had judgment for the amount of damage proved, to-wit, 50 dollars.

R. Crawford, for the appellants

(2). J. D. Ferguson, for the appellee.

The defendant insists that the mare of plaintiff was by him wrongfully suffered to run at large, and on defendants’ road, and therefore he had no right to maintain this suit. This is the point in the case; and we have already passed upon it at this term, in the case of the Indianapolis and Cincinnati Railroad Company v. Townsend (1).

Per Curiam. — The judgment is affirmed, with 1 per cent, damages and costs.

Ante, 38.