
    The Jeffersonville, Madison, and Indianapolis Railroad Company v. Chenoweth.
    
      Railroads. — Injury to Animals. — Pleading.—Suit against a railroad company for the value of stock killed on the track of the defendant by a passing train, the complaint averring, “that at the time and place when and where said stock was so run over and killed as aforesaid, the said railroad was not securely fenced as required by law.”
    Held, that this averment sufficiently implied that the road was not securely fenced whore the animals entered upon it.
    
      Held, also, that the words, “not securely fenced as required bylaw,” alleged a fact, and not a conclusion of law.
    APPEAL from the Morgan Common Pleas.
    The appellee sued the appellant in the Johnson Common Pleas for the value of stock killed on the track of the appellant at different times by passing trains. Various paragraphs of the complaint charging the defendant with negligence were dismissed.
    The other paragraphs alleged the killing, &c., and each averred, “that at the time and place when and where said stock was so run over and killed as aforesaid, the said railroad was not securely fenced as required by law.” Demurrers to these paragraphs, on the ground that they did not state facts sufficient, were overruled, and the defendant excepted.
    Issues were formed, and the venue having been changed on the defendant’s motion to the Morgan Common Pleas, the cause was there tried by a jury. Verdict for the plaintiff^ and judgment thereon. The rulings on the demurrers to the complaint are assigned as error.
   Erazer, J.

The complaint in this 'case has the same defect that was urged in The I. & C. R. R. Co. v. Adkins, 23 Ind. 340. In that case the averment was held equivalent to, or at least implying, that the road was not securely fenced where the animals entered upon the railroad. I am free to admit that this'was a very liberal construction of a pleading when attacked by demurrer, and if the question were now here for the first time I should not so hold. I do not think that such looseness in pleading should be generally sustained. But that case has not been overruled, as the counsel for the appellant seem to suppose; and the majority of the courtis not prepared to overrule it, deeming it correct.

G. M. Overstreet and A. B. Hunter, for appellant.

S. P. Oyler and I). W. Howe, for appellee.

There is nothing in the suggestion,that the words of the complaint, “not securely fenced as required by law,” allege only a conclusion of law. They aver the fact that the road was not securely fenced, and the subsequent words neither enhance nor diminish the force of the fact stated.

The judgment is affirmed, with ten per cent, damages and costs.  