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

68 Ind. 297

• Court: Indiana Supreme Court
• Decided: November 15, 1879
• Status: Published

Opinion

Biddle, J.

This action was commenced before a justice of the peace, by the appellee against the appellant, for the alleged killing of the appellee’s cow by the appellant, by means of running a locomotive and a train of cars against and over the cow, upon its railroad track.

, The complaint contains three paragraphs. The first paragraph charges that the appellant unlawfully, corruptly and negligently killed the cow, without the fault of the appellee. The second paragraph avers that the cow casually went upon the track Avhere the railroad Avas not fenced, and Avas killed where the road was not fenced. The third paragraph alleged that the cow was killed in Ellettsville, without the fault of the appellee, by the appellant’s servants carelessly and negligently running the locomotive and train of cars against the #6w, and thereby killing her.

Trial by jury ; general verdict for the plaintiff, assessing his damages at fifty dollars. With the general verdict the jury returned the following interrogatories and answers to them :

“ 1. Do you find the plaintiff was without fault, and guilty of no contributory negligence ?

“ Answer. E"o. r

“ 2. Do you find the defendant guilty of negligence in running the train which ran against the cow ?

Answer. Yes.

“ 3. Do you find such neg-ligence resulted in the injury to the cow, and that but for it the accident would not have happened?

“Answer. Yes.

“ 4. Do you find that the accident happened at a point on the defendant’s track that might have been fenced without material inconvenience to the public ?

“Answer. Yes.

“ 5. Was it fenced at such point ?

“Answer. No.”

The usual motion for a new trial was made and overruled, and exceptions reserved. Judgment, and appeal.

The appellant’s counsel make the following points :

1. That the complaint does not state facts sufficient to constitute a cause of action. This question is raised by an assignment of error.

This assignment of error goes to the whole complaint, and, if either paragraph is good, the alleged error must fail. We can find no objection to either paragraph. They all seem to be good, and, after the. verdict, there can be no doubt of their sufficiency.

2. The court overruled a motion for judgment in favor of the appellant, on the special interrogatories and answers, but, as the counsel very faintly discuss this point in their brief, we suppose they have waived it, and we think very properly. The motion was probably founded upon the supposition that the first special interrogatory and answer were inconsistent with the general verdict, but we do not think they are. The interrogatory being in the negative form, and the answer in the negative also, leave the question and answer, when taken together, simply equivalent to no finding at all. Do you find that the plaintiff was without fault ? No. Do you find that the plaintiff was guilty of no contributory negligence? No. These questious and answers do not find affirmatively that the plaintiff was in fault, or that he was guilty of contributory negligence. The plain meaning is that the jury do not find at all upon those questions. Besides, if they were equivalent to a finding that the plaintiff was in fault, and was guilty of contributory negligence, the general verdict would still be good under the second paragraph of the complaint, which is founded on the statute for not fencing the road, and under which no question of negligence as to either party is raised. The Bellefontaine R. W. Co. v. Reed, 33 Ind. 476; The Jeffersonville, Madison and Indianapolis R. R. Co. v. Parkhurst, 34 Ind. 501; The Toledo, Wabash and Western R. W. Co. v. Cary, 37 Ind. 172; The Toledo, Wabash and Western R. W. Co. v. Cory, 39 Ind. 218; The Jeffersonville, Madison and Indianapolis R. R. Co. v. Vancant, 40 Ind. 233; The Indianapolis, Cincinnati and Lafayette R. R. Co. v. Bonnell, 42 Ind. 539; The Louisville, New Albany and Chicago R. W. Co. v. Cahill, 63 Ind. 340.

3. A motion in arrest of judgment was overruled. There is no error in this ruling. We have already held the complaint to be sufficient.

4. It is insisted that the evidence is not sufficient to sustain the verdict. It is overwhelmingly with the verdict, except as to the fact whether the cow was killed at a point where the appellant could not fence its track. The onus of proving this fact was upon the appellant, and we do not think the evidence proves it. We concur with the jury in the verdict.

The judgment is affirmed, at the costs of the appellant, with ten per cent, damages.