Cincinnati, Indianapolis, St. Louis & Chicago Railway Co. v. Parker

Zollabs, J. Appellee brought this action to recover the value of a horse, which, it is alleged, went upon appellant’s railway at a point where it was not, but ought to have been, securely fenced, and was there killed by one of appellant’s trains. The errors assigned are, that the complaint does not state facts sufficient to constitute a cause of action, and that the court below erred in overruling appellant’s motion for a new trial. It is contended that a new trial should have been granted, [236] because the evidence does not show that at the point where the horse went upon the track the road should have been fenced so as to exclude animals. Filed Jan. 12, 1887. When it was shown by the evidence in behalf of appellee, that at the point where the horse went upon the track and was killed, the road was not securely fenced, the burden was upon the railway company to show, in order to escape liability, that at that point it was not bound to maintain fences. That it did not attempt to do. Evansville, etc., R. R. Co. v. Mosier, 101 Ind. 597. It is further insisted, that as the action was commenced before a justice of the peace, the complaint is defective, because it does not show that the horse was killed in the township-where the action was brought. That objection is not well taken. Such an action may be brought before any justice of the peace in the county where the animal is killed. R. S. 1881, section 4026; Wabash, etc., R. W. Co. v. Lash, 103 Ind. 80. Judgment affirmed, with costs.