Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Co. v. Staton , 82 Ind. App. 211 ( 1924 )

Dausman, C. J.

(after stating the facts as above) :

The statutory provisions imposing upon every railroad company the duty to fence its right of way are in some respects quite indefinite. § 5436 et seq. Burns 1914. However, in the light of the decisions, it is clear that the defendant (the appellant here) was not required to fence at the place where the mule entered upon the right of way. Indianapolis, etc., R. Co. v. Kinney (1856), 8 Ind. 402 ; Indiana, etc., R. Co. v. Quick (1887), 109 Ind. 295 ; Cleveland, etc., R. Co. v. Vincent (1915), 60 Ind. App. 476. To entitle the plaintiff (the appellee here) to recover, she must adduce evidence tending fairly to prove that the mule entered upon the right of way at a place where the defendant was under a duty to fence and that the defendant had failed to discharge that duty. If there was a failure to fence at some other place, that fact is wholly immaterial. There must have been a causal connection between a failure to fence and the entry of the mule upon the right of way. Chicago, etc., R. Co. v. Ramsey (1907), 168 Ind. 390, 120 Am. St. 379.

The finding is contrary to law for the reason that there is no evidence to support it.

The judgment is reversed, and the trial court is directed to grant a new trial.

McMahan, J., not participating.