Detroit, Eel River & Illinois Railroad v. Blodgett

Howk, J. In this action, the appellee, as plaintiff, sued the appellant, as defendant, in a complaint of three paragraphs, before a justice of the peace of DeKalb county, Indiana. The trial of the cause before the justice resulted in a judgment for the appellee, for thirty-five dollars, from which judgment the case was appealed to the court below. The appellant moved the court below to dismiss severally each paragraph of the appellee’s complaint; which motion was overruled as to the first and second paragraphs, to which decisions the appellant excepted. The motion to dismiss was sustained as to the third paragraph •of the complaint. The cause was then tried by a jury, and a verdict was returned for the appellee, assessing his damages in the sum of thirty-five dollars. The appellant’s motion for a new trial was overruled, and it excepted to this decision ; and its motion in arrest •of judgment having been also overruled, and its exception saved to this decision, judgment was rendered on the verdict. The appellant has assigned in this court the following decisions of the court below, as errors : 1. In overruling its motions to dismiss the first and second paragraphs of the complaint; 2. In overruling its motion for a new trial; and, 3. In overruling its motion in arrest of judgment. The first and third of these alleged errors may properly 'be considered together, for they each call in question the [317] sufficiency of the first and second paragraphs of the complaint. In the first paragraph of his complaint, the appellee alleged, in substance, that the appellant, on or about the — day of November, 1874, in De Kalb county, Indiana, did then and there, with a locomotive and train of cars used and operated by it, or used over its road through said county, run over, kill, cripple, damage and render worthless one cow belonging to the appellee, of the value of forty dollars; and that, at the place where the said cow went upon the appellant’s road and was damaged and killed, said road was not securely fenced, by reason whereof the appellee had been damaged in the sum of forty dollars. The second paragraph of the complaint set up the same-cause of action as was stated in the first paragraph, and it differed from the first paragraph only in this, that it was more specific in its averments. The appellant’s counsel, in his argument of this cause in this court, thus states his objections to appellee’s complaint : “ The objections to the paragraphs are, that there is nosuffieient allegation that the killing was in De Kalb-county; nor is there a. sufficient allegation that the railroad was not ‘ securely fenced in,’ where the killing of the cow occurred. The language ‘ not securely fenced’ is not equivalent to ‘ securely fenced in.’ ” The first of these objections is not sustained by the record, and in our opinion neither of the objections is-well taken. The only causes for a new trial assigned by the appellant in his motion therefor were, that the verdict was not sustained by sufficient evidence, and that it was contrary to law. The evidence on the trial was conflicting, but we can not disturb the verdict on this ground. This is the set318 tied rule in this court — so well established that we need not cite authorities in its support. The judgment is affirmed, at appellant’s costs.