Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Van Natta

Comstock, P. J. Upon a change of venue from the Benton Circuit Court to the Superior Court of Tippecanoe County, appellees recovered in the last-named court a judgment against appellant for $250 for the killing of a Hereford cow, alleged to have entered upon appellant’s railroad at a place where the same was not securely fenced. The complaint was in two paragraphs and a reversal is asked because of the insufficiency of said paragraphs, and because of the action of the court in overruling appellant’s motion for a new trial. Each paragraph of complaint was tested by a demurrer for want of facts. [610] 1. [609] It is insisted that the first paragraph is insufficient for failing to charge that appellant ran its cars, locomotives [610] and trains against and upon the cow in controversy, the averment being that said cow “was run against, upon and over, and killed by said defendant’s cars, locomotives and trains, run and operated upon said defendant’s right of way and tracks, by its agents, servants and employes, ’ ’ it not being averred that said servants and employes were at the time acting within the scope of their employment. In a preceding part of the paragraph it is alleged that appellant at the date and place in question “was then and there engaged in running locomotives and ears over and upon said railway,” etc. These various allegations sufficiently show that appellant was operating its locomotives by its agents. Indianapolis Union R. Co. v. Waddington (1907), 169 Ind. 448, 457, 458; Southern R. Co. v. Elliott (1908), 170 Ind. 273; Indianapolis St. R. Co. v. Schmidt (1904), 163 Ind. 360; Indianapolis St. R. Co. v. Ray (1906), 167 Ind. 236. The sufficiency of the second paragraph is not discussed. 2. It is the claim of appellant that its motion for a new trial should have been sustained, for the reason that the evidence is not sufficient to show that appellees’ cow was struck by any locomotive, car or train operated by appellant. The evidence shows that appellees’ cow was found upon appellant’s right of way suffering from injuries from which she died. On the morning after the night the cow was injured the fresh track of one cow was found entering upon the appellant’s right of way over the cattle-guards at the public highway crossing. This track led to a point where blood and hair were found upon the defendant’s track, where it ceased, and the cow was found some two rods therefrom, lying beside the railroad tracks. There was evidence that the cow walked between the rails to the point where she was struck. The collision took place at night, and appellees did not see it, but there was evidence to warrant the conclusion that the cow entered upon the defendant’s right of way over a defective cattle-guard, and [611] was struck by appellant’s engine and fatally injured. The jury are warranted in drawing reasonable inferences from facts proved. 3. 4. Complaint is also made of several instructions given. It is proper to say in this connection that, with two exceptions, the instructions requested by appellant were given. Those refused would have told the jury to exclude from their consideration any value predicated upon the pedigree of the cow. They were correctly refused. The instructions given, considered together, are not misleading nor confusing, and they fairly state the law. Taken singly, it may be conceded that some of them may be faulty in expression, but their faults are not great enough to warrant a reversal of the judgment reached, after a fair trial, upon the merits, and the rendition of a verdict which cannot be said to be without support of the evidence. Judgment affirmed.