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(39 Ind. App. 86) INDIANA UNION TRACTION CO. V. Mc another and a physician was called to treat her, KINNEY. (No. 5,680.)*

the husband had a right to recover the expense

incurred in addition to any damage that might (Appellate Court of Indiana. Division No. 2. result from the loss of services of the wife, and June 5, 1906.)

any amount received in settlement of the claim

of the wife and her husband for that purpose 1. CARRIERS-INJURY TO PASSENGERS-NEGLI. GENCE-COMPLAINT-SUFFICIENCY.

was, in the absence of a special agreement to the

contrary the property of the husband. A complaint, alleging that a street railway car negligently approached a switch at a dan

from Circuit Court, Appeal

Hancock gerous rate of speed and negligently ran into the switch at such dangerous rate of speed, and

County; Edw. W. Felt, Judge. that by reason thereof the car left the track, Action by Flora McKinney against the thereby negligently throwing a passenger from

Indiana Union Traction Company. From a her seat and injuring her, sufficiently charges negligence as against a demurrer.

judgment for plaintiff, defendant appeals. [Ed. Note.-For cases in point, see vol. 9,

Affirmed. Cent. Dig. Carriers, 88 1273, 127512.]

J. A. Van Osdol, Marsh & Cook, and L. B. 2. SAME.

Ewbank, for appellant. Mason & Jackson, A complaint alleging that a street railway car negligently approached a switch at a dan

W. J. Beckett, and Morton S. Hawkins, for gerous rate of speed and negligently ran into appellee. the switch, and that by reason thereof the car left the track, thereby negligently throwing a passenger from her seat and injuring her, suffi

WILEY, J. Action by appellee to re ciently charges the negligent derailment of the cover damages for personal injuries sustaincar.

ed by her in a wreck of an electric car on [Ed. Note.-For cases in point, see vol. 9,

which she was riding over appellant's road. Cent. Dig. Carriers, $$ 1273, 127542.]

The complaint was in two paragraphs, a de3. SAME-RELATION OF PASSENGER AND CABBIER-COMPLAINT-SUFFICIENCY.

murrer to each of which was overruled. ApA complaint alleging that plaintiff took pas pellant answered in four paragraphs, the sage on a street car at a designated point to be first of which was a denial; the second a carried to another designated point shows the relation of carrier and passenger.

plea of settlement and payment in full; and [Ed. Note.-For cases in point, see vol. 9,

the third a plea of release of damages in Cent. Dig. Carriers, $ 1275.)

consideration of money paid by check. The 4. APPEAL - HARMLESS ERROR ERRORS IN

fourth paragraph of answer is omitted from RULING ON DEMURRERS.

appellant's brief, and is not discussed in arWhere, in a personal injury action, the gument. Appellee replied in three paraanswer tendered the issue of payment and settlement and a paragraph of the reply was a gen

graphs, the first of which was a denial, the eral denial, the overruling of a demurrer to an second averred that there was no consideraother paragraph of the reply, alleging that there tion for the alleged release and settlement was no consideration for the settlement, was

of damages, and the third was a plea of non not prejudicial to the company, since the evidence pertinent to the issue was admissible

est factum as to the release. A demurrer under the answer and the denial in the reply. to the second and third paragraphs of reply

[Ed._Note. For cases in point, see vol. 3, was overruled. Trial by jury. Verdict and Cent. Dig. Appeal and Error, $ 4103.]

judgment for appellee in the sum of $2,500. 5. RELEASE-PLEADING-SUFFICIENCY.

Appellant's motion for a new trial was overThe exhibit filed with an answer in a per: sonal injury action was a copy of a check and

ruled. Overruling the demurrer to each para voucher showing that it was on account of agraph of the complaint, to the second and damages and reciting: “The indorsement of third paragraphs of the reply, and overruling this voucher by the payee constitutes a release

the motion for a new trial are assigned as in full.” The reply averred that the plaintiff did not enter into any contract or indorse the errors. check or voucher, or authorize any one to do so Omitting the formal parts of the first for her. Held, that the agreement relied on by defendant could not become effective until the

paragraph of complaint it is therein averred check and voucher were indorsed by the plaintiff that appellee, on the 4th day of July, 1903, or someone authorized by her, and the reply took passage at Indianapolis on one of desufficiently pleaded that that was not done as

fendant's cars; that she paid her fare and against a demurrer.

became a passenger at Indianapolis, and de6. CARRIERS-INJURIES TO PASSENGERS-NEGLIGENCE-PRIMA FACIE PROOF.

sired to be conveyed to the city of Anderson, Proof of a derailment of a street car and a Ind., and to points east thereof; that she was resulting injury to a passenger thereon raises sitting in her seat in one of defendant's cars,

presumption of the carrier's negligence amounting to prima facie proof, making it in

in the exercise of due care, and that the decumbent on the carrier to produce evidence to

fendant negligently and carelessly approachrebut the presumption, and that the accident ed a switch with the said car in which she could not have been prevented by the exercise of the highest practical care.

was a passenger, at the town of McCords[Ed. Note.--For cases in point, see vol. 9,

ville, at a high and dangerous rate of speed, Cent. Dig. Carriers, $$ 1283, 1288.]

and negligently ran into said switch at said 7. HUSBAND AND WIFE-RIGHTS AND LIA high and dangerous rate of speed, and that, BILITIES OF HUSBAND

by reason thereof, said car left the track and A husband is legally bound to pay a bill

“thereby negligently destroyed said car, and for medical treatment incurred in the treatment of his wife unless she agree to pay it herself,

negligently threw this plaintiff from her seat and where a wife was injured by the negligence of in said car, and against the sides and win

dows of said car,” to her injury, etc. In the *Rehearing denied November 14, 1906.

second paragraph of complaint it is charged , riers for injuries to passengers, no great parthat appellant maintained a switch and a ticularity is necessary in the description of switch track at McCordsville; that the the negligence by which the injury was ocswitch had become and was defective in that casioned." The authorities in this state seem the tongue and rail thereof had become to be uniform that as a rule of pleading it is warped and crooked; that the switch tongue sufficient as against a demurrer for want of and rail did not fit perfectly; that appel facts to characterize an act as having been lant had negligently permitted said switch negligently and carelessly done, and that, and switch rails and attachments to get under such an allegation, the specific facts out of repair and become defective as afore constituting the negligence may be given in said; that appellant's car, in passing up evidence. Louisville, etc., Ry. Co. v. Jones, on the switch, by reason of the defects 108 Ind. 551, 9 N. E. 476; Cleveland, etc., thereof, would run off of the track and be Ry. Co. v. Berry, 152 Ind. 607, 53 N. E. 415, come derailed. This paragraph contains the 46 L. R. A. 33; Chicago, etc., Ry. Co. v. following averment: "And plaintiff says that Grimm, 25 Ind. App. 494, 57 N. E. 640; she took passage upon the defendant's car on Citizens', etc., Ry. Co. v. Lowe, 12 Ind. App. said date, at Indianapolis, Ind., and desired | 47, 39 N. E. 165. It is also urged that the to be transported over the defendant's line paragraph is bad because it does not allege from said city of Indianapolis to said city of negligent derailment of the car. It is averAnderson, and to points east thereof, and red that by reason of the negligence charged, that the defendant on said date did, with the car left the track, etc. This is sufficient. said car upon which this plaintiff was a pas The demurrer to the first paragraph of comsenger as aforesaid, negligently approach plaint was properly overruled. said defective switch at a high ånd dangerous A general objection is urged to the comrate of speed, and did negligently fail to plaint because it fails to show by proper averproperly investigate and discover the condi ment that the relation of carrier and passention of said switch before running into and ger existed. This objection is not well upon the same." It is further averred that grounded. It affirmatively appears that apby reason of appellant's negligent failure pellee took pasage upon one of appellant's to approach the switch with the car under cars at Indianapolis, to be carried to Andercontrol, and by reason of its failure to inves son, This shows that the relation of carrier tigate and know the condition of said switch, and passenger existed. Ohio, etc., Ry. Co. v. and by reason of its negligence in failing to Craucher, 132 Ind. 275, 31 N. E. 941. properly construct the same and keep it in re The second paragraph of answer alleges pair, appellant's car, upon which appellee that, after appellee's cause of action accrued, was a passenger, was, by appellant's negli- | appellant settled the same by paying to her gence as aforesaid, derailed at said switch, the sum of $50, which amount she accepted whereby she was injured, etc.

"in full settlement, discharge, and satisfacIt is contended by counsel for appellant | tion thereof." The third paragraph of anthat the first paragraph of complaint does swer alleges that after appellee's cause of acnot charge that appellant was guilty of any tion accrued, and before this action was comnégligent act—that merely running the car menced, it was mutually agreed between apat a high and dangerous rate of speed is not pellant and appellee that the former would negligence per se. The language of this deliver to the latter, and that she would reparagraph of complaint is that “defendant ceive in full settlement and satisfaction of negligently and carelessly approached а the claim sued on, the check of appellant in switch with the said car in which this plain favor of appellee and her husband, in the tiff was a passenger, at a high and dangerous sum of $50; that in pursuance to said agreerate of speed, and negligently ran into said ment appellant delivered to appellee said switch at said high and dangerous rate of check; that she received the same in full setspeed, and that by reason thereof said car tlement, discharge, and release of the claim left said track and thereby

neg sued on. A copy of the check, with indorseligently threw her from her seat,” etc. As a ment, showing payment, etc., is filed as an matter of pleading this is a sufficient charge exhibit to the answer. The second paraof negligence. In the recent case of Indian graph of reply is as follows: "And for a secapolis, etc., R. Co. v. Schmidt, 163 Ind. 360, ond paragraph of reply to defendant's sec71 N. E. 201, this identical question was in ond, third, and fourth paragraphs of answer, volved, the court said: “The appellant neg plaintiff says that there was no consideration ligently ran its car at a high and dangerous of any nature whatsoever for the alleged rate of speed into a switch maintained by it release and settlement, as set out in defendon its own line, in consequence of which neg ant's said second, third, and fourth paraligent conduct, the car ran off of the track graphs of answer.” It is urged in argument against a pole in the street.

Noth that the second paragraph of reply is insuffiing else can be understood from the averments cient to avoid the second paragraph of anof the complaint, than that the negligent con swer, because the answer is a simple plea of duct of the appellant, in running its car caus payment in full, and acceptance on the part ed the car to leave the track. * * * In of appellee, while the reply is merely a plea view of the very strict responsibility of car of no consideration, and that it does not even

remotely touch upon the facts in the an one of appellant's cars, and that she desired swer. If the second paragraph of reply was to be transported from Indianapolis, Ind., bad, overruling the demurrer to it was not re to Anderson, etc. It is urged that the averversible error. The second paragraph of an ments of the complaint do not show that the swer tendered the issuance of payment and relation of carrier and passenger existed. settlement. The first paragraph of reply In determining the sufficiency of the comwas a denial. Upon the issue of payment | plaint we passed upon this question. In and settlement the burden was upon appel Ohio, etc., Ry. Co. v. Craucher, supra, it was lant. All the evidence pertinent to that issue said: "The allegation that he took passage was admissible under the answer and the to be carried from one station to another, denial in reply.

is a fact that made him a passenger. The third paragraph of reply is as follows: If any facts existed which exonerate the "And for a third paragraph of reply to He company from treating such person as a pasfendant's third and fourth paragraphs of senger, or which forfeits his right to be caranswer, plaintiff says that she did not exe ried upon such train, it must be pleaded as cute the release set out in defendant's said a defense. We think the facts pleaded in fourth paragraph of answer, nor did she each paragraph of the complaint are suffiauthorize any one for or on her behalf to so ciently specific, and the motion was properly execute said release; she further says that overruled." These instructions are not subshe did not execute nor indorse the check or ject to the objections urged. voucher set out in defendant's said third and The first instruction given by the court on fourth paragraphs of answer, nor did she appellee's motion was in substance that proof authorize any one for or on her behalf to so of the derailment of the car and resulting inexecute or indorse said voucher; she further jury raises a presumption of the carrier's states that she did not, at any time, enter negligence amounting to prima facie proof, into any contract of any nature whatsoever and adding: “And it is incumbent upon the with said defendant in reference to the set carrier to produce evidence which will extlement of her said claim for damages as set cuse the prima facie failure of duty on its forth in her complaint, nor did she authorize part; or, in other words, the carrier has the any one for or on her behalf to so enter into burden of proving, in order to rebut the any contract of release or settlement of presumption of negligence under the circumher said claim as set forth in her said stances herein stated, that the accident could complaint." This paragraph of reply was not have been prevented by the exercise of verified. The exhibit filed with the third the highest practical care and diligence." paragraph of answer is a copy of the check, The second instruction given on appellee's a voucher showing that it was on account of motion is substantially the same as the first. damages, etc., and the following: "The in An instruction, in almost the identical landorsement of this voucher by the payee con guage of these, was approved in Indianapolis, stitutes a release in full of the within ac etc., Ry. Co. v. Schmidt, supra, and in Terre count." The reply avers that appellee did Haute, etc., Ry. Co. v. Sheeks, 155 Ind. 74, 56 not enter into any such contract, or indorse N. E. 434. the check or voucher, nor authorize any one The fifth instruction is as follows: "The to execute or indorse it for her. This para husband is legally bound to pay the doctor graph of reply pleads non est factum as to bills and bills for medicine necessarily inall material facts pleaded in the third para curred in the treatment of his wife, unless graph of answer. Under the very terms of she agreed to pay them herself; and if the the check and voucher, which is made an ex plaintiff was injured by the negligence of hibit to the answer, and thereby becomes a defendant,

* *

and a physician was part of it, the agreement relied upon by ap called to treat her in consequence thereof, pellant could not have become effective until and medicine and drugs purchased to be the check and voucher were indorsed by used to heal and restore her to health, the appellee or some one authorized by her, and husband would have a right of action to rethis she avers, under oath, was not done. cover such expense, in addition to any damThe receipt by appellee of the voucher and age that might result from the loss of serycheck, was only one of the steps in their ices of his said wife, and any amount of execution, and the denial under oath, of money received in settlement of the claim the execution of these instruments is a suffi of the plaintiff and her husband for that purcient denial that she received them in settle pose, in the absence of a special agreement to ment of her claim. The demurrer was cor the contrary, would belong to the husband. As rectly overruled.

an abstract proposition this instruction is a corUnder the motion for a new trial the only rect statement of the law. At common law a questions discussed are those presented by husband was bound to support and maintain certain instructions given. Instructions 4 his wife, providing her with necessary lodging, and 5, given by the court upon its own clothing, substance, etc., and in case of sickmotion, are criticised because in stating the ness or injury, to furnish her with medicines issues tendered by each paragraph of the and medical attendance, and there is no statucomplaint, the court told the jury that it was tory provision, to our knowledge, which reaverred that appellee was a passenger upon

lieves him from these obligations, Rariden,

99

7. Mason, 30 Ind. App. 425, 65 N. E. 554 pany as the property of the plaintiff herein." It will be observed that the instruction is That the same was duly advertised for sale. directed to the fact that if the money was re by said sheriff, who sold the same at public ceived for the purposes indicated, it would auction to appellees Smith and Nordyke for belong to the husband. There was no error the sum of $605.87, said amount being the in giving it.

highest and best bid offered; that after said This disposes of all the questions discussed. property was sold the appellee bank, by its Judgment afirmed.

attorneys, receipted the said sheriff on said execution for $582.92, and said execution was

afterward returned as satisfied. “Plaintiff (38 Ind. App. 570).

avers that the amount of said bid FULLER V. EXCHANGE BANK et al.

was not paid to the sheriff aforesaid by said (No. 5,695.) *

defendants Smith and Nordyke at the time (Appellate Court of Indiana, Division No. 2. the said sheriff made said sale, or at any June 6, 1906.)

time thereafter, nor was the amount of said 1. PLEADING-ADMISSIONS.

bid paid by said sheriff to said Exchange In an action to vacate an execution sale,

Bank or its attorney

* at the time an allegation in the complaint that after the property was sold the execution creditor by its

the receipt aforesaid upon said writ was exattorneys receipted to the sheriff on the execu ecuted, nor at any other time. Wherefore tion for $582.92, and that the execution was

plaintiff prays that said sale of said stock be afterwards returned satisfied, constituted an admission that the attorney had authority to

vacated and set aside, for judgment for costs, execute such receipt.

and all other proper relief." The averment 2. EXECUTION-ACTION TO SET ASIDE SALE is that the receipt referred to was executed INADEQUACY OF PRICE.

by the bank. The authority of the attorney In an action to set aside an execution sale

to execute such receipt is thereby affirmed. of property, plaintiff cannot object that the amount for which the property was sold was

There is no averment that the amount paid inadequate or less than its actual value, in the was inadequate or less than the actual value absence of an averment of such fact in the com of the stock described. If the appellee desired plaint.

to present a question as to the inadequacy of [Ed. Note.-For cases in point, see vol. 21, Cent. Dig. Execution, $ 730.)

the consideration, he should have done so by 3. SAME-SALE-AUTHORITY.

appropriate averment, the presumption being A sheriff, in making an execution sale, is a

that property sold at a regular sale "fetches special agent, and can only pass title to prop its true value.” De Hority v. Paxon, 115 erty sold in accordance with the express pro Ind. 124, 17 N. E. 259. visions of the law.

The further question for decision is wheth[Ed. Note.-For cases in point, see vol. 21, Cent. Dig. Execution, 8 601.]

er the failure to pay the amount of said bid

invalidates the sale. The sheriff is a special 4. SAME-PAYMENT OF PRICE. Where property was sold under an execu

agent; he cannot exceed the power which the tion to a purchaser other than the judgment law gives him. That he cannot sell and concreditor, no title passed until the purchase price vey title to the property of another, except was paid to the sheriff, and the execution of a

in accordance with such law, "is one of those receipt to the sheriff by the execution creditor under an arrangement with the purchaser was

self-evident propositions to which the mind insufficient.

assents without hesitation, and that the per

son invested with such a power must pursue Appeal from Circuit Court, Owen County ; Joseph W. Williams, Judge.

with precision the course prescribed by law Action by E. Chubb Fuller against the Ex

or his act is invalid, is a principle which has change Bank and others. From a judgment

been repeatedly recognized in this court." for defendants, plaintiff appeals. Reversed.

Thatcher v. Powell, 6 Wheat. 119, 5 L. Ed.

221. It follows that a conveyance made by A. W. Wishard, A. W. Hatch, Thos. G.

him without receiving the purchase price is Spangler, and Chas. Downey, for appellant.

invalid. Chapman v. Harwood, 8 Blackf. 82, I. H. Fowler and J. C. Robinson, for appel

44 Am. Dec. 736; Doe v. Collins, 1 Ind. 24; lees.

Swope v. Ardery, 5 Ind. 213; McCormick v. ROBY, J. Appellant's demurrer to appel- Wood, 72 Ind. 718; Liggett v. Firestone, 96 lees' complaint for want of facts, was sus Ind. 265; Ruckle v. Barbour, 48 Ind. 274; tained, and refusing to plead further, judg- Freeman, Executions (3d Ed.) § 301 ; Rorer, ment was rendered against him, from which Judicial Sales (2d Ed.) 8 729; Kleber's Void he appeals.

Judicial and Execution Sales, § 18. No title It is averred in the complaint, which is in to the property sold passes until the purchase one paragraph, that on June 23, 1904, the ap price is paid. Dawson v. Jackson, 62 Ind. pellee bank recovered judgment in the Owen 172; Conklin v. Smith, 7 Ind. 107, 63 Am. circuit court against appellant for $575.92, Dec. 416. It is the payment of the purchase and costs; that an execution was duly issued money which completes the sale. Carnahan thereon and delivered to the sheriff, who on V. Yerkes, 87 Ind. 66; Liggett v. Firestone, August 25th, levied said execution "on 349 supra. Where the execution creditor purshares of stock at $100 per share of the cap chases, it is held that his receipt is sufficient ital stock of the Epitomist Publishing Com without the actual payment of the purchase

price by him to the sheriff, for the reason *Rehearing denied October 4, 1906.

that to require him to pay over the money to go, Indianapolis & Louisville Railway comthe sheriff, immediately thereafter receiving pany. From a judgment for plaintiff, defendit back from the sheriff, would be an idle ant appeals. Affirmed. form. Louden v. Ball et al., 93 Ind. 232,

E. C. Field, H. R. Kurrie, and Guenther 234; Boos v. Morgan, 130 Ind. 305, 311, 30

& Clark, for appellant. Jos. Combs, for apN. E. 141, 30 Am. St. Rep. 237; Burton v.

pellee. Ferguson, 69 Ind. 486; Robertson v. Van Cleave, 129 Ind. 217, 26 N. E. 899, 29 N. E.

ROBINSON, C. J. Suit by appellee for the 781, 15 L. R. A. 68; Dean v. Phillips, 17 Ind.

cost of repairing or rebuilding a fence be406. The reason for this exception from the

tween appellee's property and appellant's universal rule requiring a cash payment of the

right of way. Upon issues formed, a trial amount bid, does not apply when the purchas- resulted in a finding in appellee's favor for er is not the execution creditor. The cash pay

$38.38 and $25 attorney's fees, and judgment ment satisfies the writ and judgment, the sub

for $63.38. The only question argued is that sequent application of the proceeds of such sale

the finding is not sustained by sufficient evibeing a matter to which the debtor is not re

dence, both as to the amount allowed for quired to give any attention. State ex rel. v.

building the fence and as to attorney's fees. Salyers, 19 Ind. 432; Beard v. Millikan, 68

The statute (section 5323, Burns' Ann. St. Ind. 231.

1901) requires that the railroad company It is insisted by appellant that the attorney

shall erect and maintain fences along its who executed the receipt averred to have

right of way, that they may be constructed been given by the appellee bank had no au

of barbed wire, and that they shall be suffithority to act for the bank in that behalf.

the point argued, it is suggestive of controversies

horses, mules, sheep, hogs, and other stock likely to follow a holding that arrangements

from getting on the track. The authority between the execution creditor and the pur

for requiring railroad companies to erect chaser to which the execution debtor is not a

and maintain fences on the sides of their

roads sufficient and suitable to prevent cattle, party may take the place of the cash payment by which the sale is consummated and

horses, mules, sheep, hogs, and other stock without which no title passes. The failure to

from getting upon them, is found in the genpay the amount bid is not a mere irregular

eral police power of the state to provide ity, but is of the essence of the transaction,

against accidents to life or property in any and the requirement that the amount of such

business or employment. Indianapolis, etc., bid be paid in cash is therefore a material

R. Co. v. Townsend, 10 Ind. 38; Indianapolis, and essential one.

etc., R. Co., v. Kercheval, 16 Ind. 84; IndianThe judgment is therefore reversed, and

apolis, etc., R. Co. v. McKinney, 24 Ind. 283; cause remanded, with instructions to over

Peoria, etc., R. Co. v. Duggan, 109 Ill. 537, 50 rule the demurrer to appellees' complaint

Am. Rep. 619; Missouri Pac. R. Co. v. Humes, and for further consistent proceedings. 115 U. S. 512, 6 Sup. Ct. 110, 29 L. Ed.

463; Minneapolis, etc., R. Co. v. Beckwith,

129 U. S. 26, 9 Sup. Ct. 207, 32 L. Ed. 585; (38 Ind. A. 196)

Minneapolis, etc., R. Co. v. Emmons, 149 CHICAGO, I. & L. RY. CO. V. IRONS.

U. S. 364, 13 Sup. Ct. 870, 37 L. Ed. 769; (No 5,621.)

Elliott, Railroads, $$ 669, 1219, 1220. (Appellate Court of Indiana, Division No. 1. There is evidence in the record that, after June 6, 1906.)

the notice was given to repair the fence, ap1. RAILROADS-RIGHT OF WAY FENCE-CONSTRUCTION-CONSTITUTIONAL LAW-POLICE

pellant made some repairs; that, after the rePOWER.

pairs were made, the fence was a barbed wire Burns' Ann. St. 1901, $ 5323, requiring fence such as the statute contemplates. But railroads to construct and maintain fences along

there is also evidence that, after the repairs their right of way sufficient and suitable to turn and prevent cattle, etc., from going on the

were made, the fence was not sufficient to track, is a valid exercise of the state's police turn stock as specified in the statuté. · If. power to provide against accidents to life or

the fence, after the repairs were made by property in any business or employment. [Ed. Note.--For cases in point, see vol. 41,

appellant, was sufficient to turn stock, any Cent. Dig. Railroads, $ 762.]

further work done on the fence by the land2. SAME-RECONSTRUCTION BY LANDOWNER.

owner must be at his own expense; that Where a railroad right of way fence, after is, if appellant had made the fence sufficient being repaired by the railroad company pursuant to turn stock it had complied with the statto notice, was insufficient to turn stock, as required by Burns' Ann. St. 1901, § 5323, the

ute. It may have made a barbed wire fence; landowner was entitled to repair or rebuild the

but the question is, did it make a fence suffisame and recover the cost and a reasonable at cient to turn stock? This was a question torney's fee from the railroad company.

of fact at the trial. This court cannot under[Ed. Note.--For cases in point, see vol. 41.

take to harmonize the conflicting statements Cent, Dig. Railroads, $$ 328-332.]

of the witnesses upon this question. There Appeal from Circuit Court, Clinton County; is evidence that after the fence was repaired Jos. Claybaugh, Judge.

by appellant it would not turn stock as reAction by Thomas Irons against the Chica quired by statute.

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