Marshall County Republican. (Plymouth, Ind.) 1856-1878, 1867-12-26
NEUTRALITY-SUSPICIOUS.
CHSION.
Owner of Stock Running at Large
Held Responsible for Damage to
a Passing Train.
sfnram VS.. the Pittsburgh, TT. Wayne
d Chicago Railway Company.-Ap-
peal from the Allen Circuit Court.
[Trom the TT. Wayne Gazette.l

peal from the Allen Circuit Court.
(Trom the TT. Wayne Gazcttel
Our readers will remember the case OF
the p. +. w. Sc c. Railway Company.
against Sinram, decided in our Circuit
Court some time since, and taken to the
Supreme Court on appeal. 1t was one of
the most important cases ever tried in our
court, and the decision of the court below
has been affirmed. We givs the opinion
of the Supreme Court, and the case as fol-
lows:
The railway Company sued Sinram in
the Court below for an inju.y oCcasioned
To a train of cars by collision with two
cows, the property of the defendant, at the
crossing of a public highway. The grava-
men is, that the defendant, cdrolessly and
negIigentiy suffered and permitted his
cattle to run ct large in the immediate
neighborhoOd of and upon the crossing
knowing the danger to The company OF
damage thereby. The case was tried upon
this agreed statement:
On The 18th of August, 1866, at cross
ing of the Paulding State road, public
highway, over the railway of the plaintiff,
about five miles east of Fort. WAYNE, in
ADAMS township, Allen county, Indiana,
The plaintiff was running gravel train in
daily use at that point. along her railroad.
and when running the train at proper
speed, and without any negligence on her
part. and when the train had approached
the highway within one hundred feet. two
COWS belonging TO the defendant. suddenly
ran upon the track of the railroad, at and
upon the crossing of the highway, and
collided with and were run over and killed
by the train, which could not be prevented
by the servants of the company running
the train. throwing the train from the
track, and injuring and damaging the
same to the amount of five thousand
dollars, and without the plaintiffs fault
or neglect. The roal was properly
fenced, and proper cattle guards placed
by the Company on each side of the
crossing for several miles each way
The defendant was not present, and had
no actual knowledge of the fact that the
cattle were on the crossing at time of the
collision, but had before that time for one
year resided within one fourth of mile Of
the crossing, and knowing that the plain
Tiff was running grvel train several times
at least twice-a day over the road, and
the crossing of the public highway, each
way, and that the plaintiff was running at
least ten passenger and freight trains over
tie road, and the crossing, each way,
every day, for the period of one year, be-
fore and at the time of collision, had know
ingly suffered and permitted the cattle to
run at large pasturing upon common and
uninclosed lands on both sides OF the read.
adjoining the railway and near to the
crossing. and in immediate proximity
thereto during said period, daily using the
d..1 a,,I nt tf,nsr ~.
board of Commissioners of the county of
Alien having on the--day of June, 1865,
made an order that all cattle. sheep, and
swine. except bulls, rams, and bears, may be
al owed 10 pasture or run AT large upon the
uninclosed lands or public commons with
in the bounds of any township in said
county of Allen" The cattle were never
attended by any one, but wandered at viii
in pursuit of pasture over said crossing at
all times of day and night, and whilst they
were so wandering with the knowledge of
the defendant, as aforesaid, over the cross
ing, the collision in question occurred. The
plaintiff had the right of way, and was en-
gagged in the lawful operation of her rail
road over and across the said. highway at
the time.
The complaint is not that the appellant
unlawfully suffered his cattle to run at
large, and therefore the statute and the or
der of tie Board made there under. allow
ing cattle 10 run at large on uninclosed
lands and public common. can have no in
fiuence in the determination of this case.
The question is, did the defendant so care
lessly and negligently use his own proper
ty to the injury of the plaintiff rs to entitlc
the latter to recover therefor?
Kerwhaker VS.. TIE Cleveland, Colum-
bus & Cincinnati Railroad Company, 3
Ohio, st. r., l72, relied on by the appel
lant's counsel, was an action IN trcspass on
the case, for the alleged negligence and
misconduct Of defendants agents, in con-
Quoting and running locomotive and cars
on the defendants railway track, whereby
six hogs, the property OF the plaintiff, were
killed. Ii was held in that case that the
act of the plaintiff in allowing his hogs to
be at large in the neighbOrhood of the rail-
road, where they were exposed 10 the dan
ger of getting upon the railway track, and
being injured, was only a remote cause
of the injury; and in the voluntary expo
sure of his property 10 danger. in the exer-
else of his lawful rights, he took upon him.
self the risk of injury to his property by
mere accident, but not the risk of injury
by the defendants negligence. But the
facts OF that case bear no analogy TO this
Here the defendant lived in the immediate
vicinity of a dangerous rOad-ciossing; he
knew that his cattle were i'm the habit of
roaming al large across the railway track
at this point at all hours in the day and
night in search OF pasture; he was aware of
the danger TO trains from this cause; he
knew that some thirteen trains were pas
sing each way every day. Notwithstand-
ing this knowledge, he permitted his cattle
10 60 at large unattended. 1t is admitted
that the railway Company were without
fault.
In Knight. administrator, &C., VS.. the
Toledo & Wabash Railway Company, "a
Indiana, 403; this Court held that it was
negligence for the owner Of a blind horse
to turn him out upon the common of
town, through which railroad ran, where
he was killed by passing train.
In Barnes VS.. Chaplin, Allen, 444, it
was held that if a sucking colt, while fol-
lowing its dam, which is led by her owner
in highway, is kicked and killed by
horse which has been turned loose in the
highway, without keeper, the owner OF
the colt, If found by the Jury to have been
in the exercise of reasonable care, may re-
cover damages of the owner Of the horse,
although the horse was not vicious The
right of the defendant TO permit bis cattle
to pasture on uninclosed lands and public
commons. conferred no right on him to
permit them unattended, TO wander on
dangerous crossing of the railway track,
thereby endangering the lives of passen-
gers and the property of the railway COM
pany. Such an act ought to be a INSIDE
meanor. 1t certainly is an act of wicked
carelessness. IL is a maxim of the law