Cincinnati & Martinsville Railroad v. Townsend

Downey, J. Two errors are assigned by the appellants in this case; first, overruling the separate demurrers of the appellants to the complaint; second, overruling the motion of the appellants for a new trial. The complaint, after the usual commencement, alleged that on the-day of October, 1868, at and in the county of Johnson, and State of Indiana, the said Indianapolis, Cincinnati, and Lafayette Railroad Company, while running and propelling their locomotive and cars along and upon that part of the road of the Cincinnati and Martinsville Railroad Company which is situated in said county of Johnson, and [39] without any fault or negligence of the plaintiff, ran oyer, crippled, maimed, and injured one colt, the property of the plaintiff of the value of ninety dollars, whereby said colt was damaged and rendered worthless, and of no value whatever; that at the time and place when and where said colt entered upon said railroad track, and where said injury was inflicted, said road was not securely fenced in, and such fence properly maintained. D. Howe, for appellants. G. M. Overstreet and A. B. Hunter, for appellee. And for a further complaint herein, said plaintiff says, that on the 20th day of June, 1870, at and in the county of Johnson and State of Indiana, the said Indianapolis, Cincinnati, and Lafayette Railroad Company, while running and propelling her locomotive and cars along and upon that part of the road of the Cincinnati and Martinsville Company which is situated in said county of Johnson, and without any fault or negligence of the plaintiff, ran over, crippled, maimed, and injured one heifer, the property of the said plaintiff and of the value of thirty-five dollars, whereby said heifer was damaged and rendered worthless, and of no value whatever; and the plaintiff avers that at the time and place where and when said heifer entered upon said railroad track, and where said injury was inflicted, said road was not securely fenced in, and such fence properly maintained; wherefore, etc. It is quite clear to us that the complaint in this case was insufficient, and that the demurrer thereto should have been sustained. For the reasons, see The Cincinnati and Martinsville R. R. Co. v. Paskins, 36 Ind. 380. The judgment is reversed, with costs, and the cause remanded.