Opinion
No. 13,965.
Filed April 24, 1930. Rehearing denied July 2, 1930.
1. RAILROADS — Cattle-guards — Application of Statute — To Private Roadways. — That part of § 13116 Burns 1926 requiring railroads to construct cattle-guards at highway crossings does not apply to crossings over private roadways. p. 573.
2. HIGHWAYS — Road to Cemetery — Establishment by User. — The use of a road leading to a cemetery by all members of the public who had occasion to use the roadway for a period of 20 years or more makes it a public highway. p. 573.
3. RAILROADS — Liability for Killing Stock on Right of Way — Absence of Cattle-guards — Refusal of Instruction as to Establishment of Highway by User. — In an action against a railroad company for killing a cow which got on the right of way by reason of the fact that there was no cattle-guard at a highway crossing, the refusal to give an instruction that 20 years' use of a road to a cemetery would make it a public highway was reversible error. p. 573.
From Dearborn Circuit Court; William Ricketts, Judge.
Action by Enoch Guard against the Cleveland, Cincinnati, Chicago and St. Louis Railroad Company. From a judgment for defendant, the plaintiff appealed. Reversed. By the court in banc.
Charles A. Lowe and Robert E. Kestner, for appellant.
Frank Littleton, Forrest Chenoweth, Estal Bielby, Harry N. Quigley and Samuel W. Baxter, for appellee.
Action to recover the value of a cow alleged to have been killed by appellant's locomotive and train; complaint in three paragraphs; the first is based upon alleged failure of appellee to maintain a fence and cattle-guard; second paragraph is drawn upon the theory of last chance; the third charges the wilful and intentional killing of the cow. The cause having been put at issue by denial, a trial resulted in a verdict and judgment for appellee.
It appears from the evidence that the cow escaped from appellant's premises and wandered upon a little-used roadway which led from a public highway known as State Highway 50, across appellee's railroad tracks, to a cemetery; that, at the crossing of the railroad and the roadway, the cow left the roadway and strayed to the point on the railroad right of way, about 1,000 feet from the crossing, where she was struck and killed by appellee's locomotive. The entrance by the cow upon appellee's right of way was made possible because there was no cattle-guard at the crossing.
The act of 1885 (Acts 1885 p. 224, § 13116 Burns 1926) makes it the duty of a railroad company, where it operates a railway through improved and inclosed lands, as was the fact in the 1. case at bar, to fence its road, and maintain cattle-guards at all public highway crossings. The statute does not require a railroad company to maintain cattle-guards where the crossing of the railroad is over a private roadway.
Because of this statute, the question as to the character of the road leading to the cemetery, as to which the evidence was conflicting, became an important question at the trial. The 2. issue as to whether the road leading to the cemetery was public or private was, by the court, submitted to the jury; and appellant tendered two instructions numbered by him as instructions Nos. 3 and 4. These instructions were, in substance, that if the jury found from the evidence that the road, prior to the date the cow was killed, had been "used by all members of the public who desired to go that way, and who had occasion to use the roadway," then such use of the road "continuously for a period of twenty years or more would make it in a law a public highway."
It is contended by appellee that the court correctly refused to give these instructions, for the reason that, as drawn, certain elements, essential in the establishment of a public 3. highway by prescription, are omitted. The contention is without merit. The courts of appeal of this state have each held that if a road has been in use as a highway continuously for a period of 20 years, its status as a public way is fixed, irrespective of the other methods of creating public highways. Pittser v. McCreery (1909), 172 Ind. 663, 88 N.E. 303; Pittsburgh, etc., R. Co. v. Town of Crown Point (1898), 150 Ind. 536, 50 N.E. 741; Stewart v. Swartz (1914), 57 Ind. App. 249, 106 N.E. 719. The tendered instructions conform to the opinions in the authorities cited. It follows that the refusal to give the instructions was error.
The record shows that there were errors in the giving of certain other instructions, and in the admission of evidence; but the errors are of such a character that they are not likely to recur on a retrial, and need not be considered.
There was no evidence to support the second and third paragraphs of complaint. The trial would have been simplified if there had been a dismissal as to those paragraphs.
Judgment reversed, with instructions to grant a new trial.
Nichols, J., not participating.