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The Cincinnati, Hamilton and Indianapolis Railroad Company t>. Jones.
tended to show that she had fallen into the openings and was struggling to extricate herself when the engine came upon her. Since there seems to have been no dispute but that the west end of the bridge was substantially in the highway, it is made reasonably clear that the railroad company could not lawfully have placed a cattle-pit to the westward of the bridge. The highway ran parallel with and along the margin of the race. A fence could have served no useful purpose, and as there was only seven feet between the west end of the bridge, which was in the highway, and the travelled track, to have placed a cattle-pit there would have been manifestly an unlawful and dangerous obstruction in the highway.
It is abundantly settled that a railroad company is not required to fence its track nor to maintain cattle-pits at points where to do so would interfere with the safety of its employees in operating trains upon the road, or where fences or cattlepits would interfere with its rights in the transaction of business with the public, nor where the rights of the public in travelling or doing business with the company would be interfered with. When animals enter upon railroad tracks at such places and are killed within limits that can not and are not required to be fenced, the company is not liable under the statute. Indiana, etc., R. W. Co. v. Quick, 109 Ind. 295; Indiana, etc., R. W. Co. v. Sawyer, 109 Ind. 342; Fort Wayne, etc., R. R. Co. v. Herbold, 99 Ind. 91.
The company did not, however, make its defence complete, by showing that it could not maintain a fence or cattle-pit in the highway. The location of its bridge was such that it was necessary that it should have been so constructed as to prevent animals from entering upon it; or, if this was impracticable, the fact should have been made to appear.
While courts maj say as matter of law that railroad companies can not be required to erect fences or construct cattlepits in public highways, courts can not judicially know that a railroad bridge abutting upon a highway may not reasonably be so constructed as to deter animals from entering The Cincinnati, Hamilton and Indianapolis Railroad Company v. Jones.
thereon, and yet be secure for the passage of engines and trains. If, with reasonable skill and care, a railroad bridge so situate can be so constructed and maintained as to prevent animals from entering upon it, and yet be safe for the business of the company, a due regard for the safety of trains and those travelling upon them, as well as for the safety of animals, imposes the duty upon the company of exercising the degree of care and skill required to construct and maintain such a bridge. As has been observed before, we find no evidence upon this subject. The burden was upon the company to show that it had adopted all reasonable and practicable precautions to keep animals from entering upon the bridge from the adjacent highway. Cincinnati, etc., R. W. Co. v. Parker, 109 Ind. 235; Louisville, etc., R. W. Co. v. Clark, 94 Ind. Ill; Louisville, etc., R. W. Co. v. Shanklin, 94 Ind. 297.
Until it appears that it is reasonably impracticable to construct bridges with cattle-guards, we are constrained to hold that where a railroad company maintains a bridge in such a condition that animals may enter upon it from a public highway, thus putting in jeopardy the safety of trains, as well as the lives of the animals, the railroad is not cecurely fenced. Louisville, etc., R. W. Co. v. Porter, 97 Ind. 267; Evansville, etc., R. R. Co. v. Barbee, 74 Ind. 169.
It does not alter the case that the bridge may have been partially in the highway, or that the animal may have been struck while upon that part of the bridge which extended into the highway limits. If the railway company appropriated part of the highway to the purpose of maintaining its bridge, and left its structure in such a condition that animals could enter upon it, the company will not be heard to say that animals killed upon the bridge were killed within the limits of the highway. After the railway company converted part of the highway to the support of its railway bridge, that part of it which was occupied by the bridge, and the tracks thereon, could not be regarded as part of the highway.
At the trial the plaintiff was permitted, over the objection The Cincinnati, Hamilton and Indianapolis Railroad Company v. Jones.
of the appellant, to ask the following question: "Suppose 'Little Miss' was in as good condition, sound in wind and limb, at the time she was killed in October, 1884, if she was killed then, as she was when you knew her last, then I will ask you to state what was her fair market value."
It was not error to permit the question to be answered, especially as the record in that connection indicates that counsel for plaintiff apprised the court that if they did not maintain the hypothesis upon which the question was put the evidence should be stricken out. City of Indianapolis v. Scott, 72 Ind. 196; Pennsylvania Co. v. Marion, 104 Ind. 239; Nave v. Tucker, 70 Ind. 15.
Until the contrary appears, we must assume that other evidence was given in support of the hypothesis upon which the question rested, or that it was withdrawn from the jury.
Rulings made by the court in respect to admitting and excluding evidence upon various subjects connected with the condition of the animal at the time she was killed, in respect to her market value at Rushville, if withdrawn from the race-course, whether or not she had been the loser in races, and as to her comparative value with another animal named, are the subjects of comment by counsel. Without going into details upon these subjects, it is sufficient to say that we have considered the questions presented and have found no error in the rulings of the court.
The value of the animal as a broodmare came in question at the trial, and the appellant asked a witness what one of her colts, which had been sold some years before, brought at a public sale at or near the city of Rushville. The court sustained an objection to the question. It does not appear from any statement in the record what the witness would have testified to in answer to the question put. No question is, therefore, presented for consideration. Higham v. Vanosdol, 101 Ind. 160.
Questions were asked by the appellant in reference to the general reputation of the mare among horsemen and turfmen The Cincinnati, Hamilton and Indianapolis Railroad Company v. Jones.
"with reference to her being 'rattle-headed' or disposed to break" when racing. These were questions of fact, to be proved by persons acquainted with the performances of the animal upon the track. We are not directed to any authority, and we know of none, which sustains the claim that the general reputation of the animal was admissible in evidence.
Numerous other questions relating to rulings upon the evidence are discussed. We have examined them, and find no error.
The questions growing out of the refusal to give certain charges asked by the appellant have been considered and disposed of by what has already been said upon the subject of the duty of the railroad to maintain its bridge in such a condition as to prevent animals from going upon it.
The instructions asked and refused proceeded upon the assumption that if the animal entered upon the railroad track at a public crossing, or if the west end of the bridge extended into the highway, so that no cattle-pit could have been maintained therein, or if the animal was killed on the bridge within the limits of the highway, then in either case no recovery could be had by the plaintiff. As has already been seen, neither of the foregoing theories, without more, is maintainable. There is evidence which sustains the amount assessed by the jury.
Under the well settled rule we can not disturb a verdict upon what we might suppose to be the weight or preponderance of evidence. The instructions of the court put the case fairly to the jury. There was no error.
Judgment affirmed, with costs.
Filed May 23,1887; petition for a rehearing overruled June 16, 1887. The Continental Life Insurance Company v. Houser.
The Continental Life Insurance Company V. Houser.
Life Insurance.— When Premiums can not be Recovered.—Where a risk once attaches, under a valid policy, premiums paid upon it during its continuance can not be recovered back as for money had and received.
Law Op Case.—Decision of Supreme Court.—The decision of the Supreme Court in a cause remains the law of the case in all subsequent proceedings.
From the Vigo Circuit Court.
J. Buchanan, for appellant.
W. Eggleston and E. Reed, for appellee.
Howk, J.—This cause is now before this court for the second time. On the former appeal, the opinion and judgment of this court are reported under the title of Continental Life Ins. Co. v. Houser, 89 Ind. 258.
When the cause was returned to the court below, appellee filed an amended complaint, in four paragraphs. Of these, appellant's demurrer was sustained to the second paragraph, and appellee voluntarily withdrew the third paragraph of her complaint. Issues were joined on the first and fourth paragraphs of complaint by appellant's answer in general denial thereof. These issues were tried by a jury, and a verdict was returned for appellee assessing her damages in the sum of $593.75; and, over appellant's motion for a new trial, the court rendered judgment on the verdict.
Errors are assigned here by appellant, which call in question (1) the sufficiency of the first paragraph of complaint when challenged, for the first time, in this court; (2) the overruling of its demurrer to the fourth paragraph of complaint, and (3) the overruling of its motion for a new trial.
1. It is conceded by appellant's counsel, in his brief of this cause, that the first paragraph of appellee's complaint, now before this court, is the same substantially as her third paragraph of complaint on the former appeal herein. We