Indianapolis, Pittsburgh, & Cleveland Railroad v. Petty

Erazbr, J.

The second paragraph of the complaint was good. Where the injury is alleged to have been willfully done, it is not necessary that it should- appear that the plaintiff’s carelessness did not contribute to it . L. & I. R. R. Co. v. Adams, 26 Ind. 76 .

The sufficiency of the first paragraph is questioned here by assignment of error, no such question having been made in the court below, nor in this court, upon a former appeal. See 25 Ind. 413 . It is not directly shown by Ibis paragraph *263 that the animals entered upon the road where there was no sufficient fence, the averment being merely “that the railroad aforesaid was not securely fenced in, and the fence properly maintained.” This language may mean that the railroad was not securely fenced anywhere, and therefore imply necessarily that it was not so fenced where the animals entered. Such liberality of construction must be indulged after verdict. 1 Chitty’s Pl. 673, et seq. There could not have been a verdict for the plaintiff upon this paragraph without proof of the fact thus implied; and as no objection appears to have been made to evidence, and the evidence is not in the record, it is, we think, fair to assume in support of the judgment, that this proof was made without objection. The code has little toleration for the practice of concealing questions from the lower courts with a view to make them available upon vexatious appeals; and it is therefore necessary to the harmony of our practice, as a whole, as well as to the fair administration of justice, that the most liberal form of the common law doctrine of intendment after verdict shall be fully maintained.

W. March, J. A. Harrison, and J. Davis, for appellant. G. E. Shipley, for appellee.

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