acquired in this state, and shall exercise the powers, rights, privileges, immunities and franchises hereby conferred, subject to all the rights, powers, privileges, duties and obligations prescribed by the general laws of this state, for the regulation, government, taxation or control of railroad companies organized under the laws of this state: and Provided, further, That this act shall not be construed as authorizing any railroad company to purchase any parallel and competing line of railroad in this state.

5343c. Repeal.-3. All laws and parts of laws in conflict herewith are hereby repealed.

Section 4 of the above act provides that the act be in force and effect from and after its passage.

SEC.

ARTICLE 4.-BY CONSOLIDATION.

5381. Power to consolidate generally.

5381. Power to consolidate generally.

Construction of the statute authorizing steam or electric railroad companies to consolidate; the powers and rights of a consolidated company; the rights and liabilities of stockholders, and of the right of a stockholder to sue to set aside and annul a consolidation agreement entered into between two interurban railway companies. Norton v. Union Traction Co., 183 Ind. 666, 110 N. E. 113.

CHAPTER 43.

CORPORATIONS-RAILROADS-AFTER ORGANIZATION.

Section numbers to notes refer to the Revised Statutes of 1914 and sections herein.

5431. Signals at highway crossings.

The statute requiring signals to be given of the approach of railroad trains to highway crossings does not apply to the crossings of streets when the giving of such a signal would violate a city ordinance. Cleveland etc. R. Co. v. Lynn, 177 Ind. 311, 95 N. E. 577, 98 N. E. 67; Pittsburgh etc. R. Co. v. Terrell, 177 Ind. 447, 95 N. E. 1109.

Signals should be given at street crossings unless the giving of such signals is prohibited by a city ordinance. Pittsburgh etc. R. Co. v. Terrell, 177 Ind. 447, 95 N. E. 1109; Lake Shore etc. R. Co. v. Myers, 52 App. 59, 98 N. E. 654, 100 N. E. 313; Pittsburgh etc. R. Co. v. Macy, 59 App. 125, 107 N. E. 486.

It is an act of negligence to fail to give the signal required by statute of the approach of a railroad train to a highway crossing, and may render a railroad company liable for an injury to a person on the crossing unless the giving of such a signal would be a violation of a city ordinance. Pittsburgh etc. R. Co. v. Terrell, 177 Ind. 447, 95 N. E. 1109; Wabash R. Co. v. McNown, 53 App. 116, 99 N. E. 126, 100 N. E. 383; Chicago etc. R. Co. v. Gorman, 58 App. 381, 106 N. E. 897; Pittsburgh etc. R. Co. v. Macy, 59 App. 125, 107 N. E. 486.

The act of 1911, Acts 1911, p. 132, section 5277m, R. S. 1914, requiring automatic bell-ringing devices to be put on railroad locomotives, is supplemental to this section. State v. Louisville etc. R. Co., 177 Ind. 553, 96 N. E. 340.

If it is charged in a complaint against a railroad company that signals were not given as required by statute of the approach of a train to a highway crossing, a general verdict against the company is a finding that such signals were not given, and a special finding that some signals were given will not override the general verdict. Wabash R. Co. v. McNown, 53 App. 116, 99 N. E. 126, 100 N. E. 383.

The statute requiring signals to be given of the approach of railroad trains to highway crossings, applies to crossings where highways have become such by dedication on the part of the owners of the land on which the highways are located. Pittsburgh etc. R. Co. v. Ervington, 59 App. 371, 108 N. E. 133.

The crossing signals required by this section are for the benefit of persons on the highway and one injured in the yard of a railroad company can not recover for failure to give such signals. Hill v. Chicago, etc. R. Co., 188 Ind. 130, 122 N. E. 321.

The failure of a railroad company to give the signals required by this section when its engines approach a crossing on a public highway is negligence per se. Hill v. Chicago, etc. R. Co., 188 Ind. 130, 122 N. E. 321.

5432. Penalty for failure to give signals.

If a complaint against a railroad company and the engineer in charge of a locomotive for the recovery of damages because of an injury to a person on a highway crossing charges that the injury was caused by reason of the fact that the engineer failed to give the signals required by statute of the approach of the locomotive and train to the crossing, and a verdict is returned in favor of the engineer but against the railroad company and assessing damages for such injury, no judgment can be rendered against the company on the verdict. Childress v. Lake Erie etc. R. Co., 182 Ind. 251, 105 N. E. 467.

In actions against railroad companies to recover damages for injuries to animals on railroad tracks, the plaintiff is required to allege and prove that the injury was caused by the animal being struck by the railroad locomotive or cars. Pittsburgh, etc. R. Co. v. Vance, 58 App. 1, 108 N. E. 158.

If a railroad locomotive or train strikes an object and hurls it against an animal on or near a railroad track, there is such a striking of the animal as to render the railroad company liable for the injury done to the animal when all other facts necessary to render the company liable are established. Cleveland etc. R. Co. v. Vincent, 60 App. 476, 109 N. E. 810.

If a railroad company claims that animals that were injured on the railroad tracks entered upon the tracks at a place where the company was not required to fence the tracks, the burden is upon the company to prove such fact. Cleveland etc. R. Co. v. Vincent, 60 App. 476, 109 N. E. 810.

The question as to what places railroad companies are not required to fence their tracks, and when the question as to when railroad tracks should be fenced is one of law or fact, is considered. Cleveland etc. R. Co. v. Vincent, 60 App. 476, 109 N. E. 810.

The statutes, sections 5436-5443, of the Revised Statutes of 1914, regulating the liability of railroad companies for injuries to animals, do not apply to interurban railroads. Union Traction Co. v. Thompson, 61 App. 183, 111 N. E. 648. These sections and sections 5447-5450, relating to the fencing of railroads apply only to steam railroads, and not to interurbans. Union Traction Co. of Indiana v. Thompson, 61 App. 183, 111 N. E. 648.

In view of this section and section 5432, it was held that an unnecessary averment of negligence in action against a railroad company for stock killed because of its failure to maintain a fence as required by this section will be treated as surplusage, and that the pleader did not intend to state two causes of action in one paragraph of complaint. Pittsburgh, C., C. & St. L. R. Co. v. James, 64 App. 456, 114 N. E. 833.

Under this section and section 5442, contributory negligence is not a defense to an action against a railroad company for stock killed through the failure of the company to maintain a fence as required by these sections. Pittsburgh, C., C. & St. L. R. Co. v. James, 64 App. 456, 114 N. E. 833.

An allegation that railroad failed to fence its right of way as required under these sections may be proved by circumstantial evidence in an action for killing a horse. Chicago & E. R. Co. v. Keefer, App., 119 N. E. 807.

Evidence that a train came in contact with a horse is insufficient to sustain an allegation against a railroad for killing a horse due to failure to fence right of way as required under these sections. Chicago & E. R. Co. v. Keefer, 119 N. E. 807.

App.

5442. Not liable, if road fenced.

See note to section 5436.

5444. Driveways to connect lands separated by right of way.

The question as to when the right to driveways across railroad tracks is an easement that will run with the land and will pass to the purchaser of the land, or will be lost when the driveway ceases to be a necessity to the owner of the land, is considered. Vandalia R. Co. v. Furnas, 182 Ind. 306, 106 N. E. 401; Pittsburgh etc. R. Co. v. Kearns, 58 App. 694, 108 N. E. 873.

This section reserves to land owners whose lands are divided by a railroad right of way the right to a crossing over the railroad track, and a contract by a railroad company to improve such crossing is not the grant of an easement and need not be in writing. Indianapolis etc. R. Co. v. Wycoff, 51 App. 159, 95 N. E. 442.

The amount of damages that a land owner may recover when a railroad company destroys a driveway across its tracks is considered and determined. Pittsburgh etc. R. Co. v. Kearns, 58 App. 694, 108 N. E. 873.

5446. Liability of railroads for animals killed.

If animals enter upon railroad tracks through gates at farm crossings, the railroad company is only liable for injuries to such animals when reasonable care and diligence is not used to avoid such injury. Vandalia R. Co. v. Duling, 60 App. 332, 109 N. E. 70.

5447. Fences, liability of railroads.

Complaints in actions against railroad companies for injuries to animals on the railroad tracks which follow the language of the statute as to there being no sufficient fences or cattle-guards to prevent the animals from entering upon the tracks are sufficient, and any evidence is admissible which tends to prove the allegations. Lake Erie etc. R. Co. v. Voliva, 53 App. 170, 101 N. E. 338.

If two railroads are parallel and adjacent to each other, fences are not required by the statute regulating the fencing of railroads to be erected and maintained between the tracks of the two railroads. Pickett v. Toledo etc. R. Co., 61 App. 26, 111 N. E. 434.

See note to sections 5436-5446.

This section does not require the maintenance of a fence between two adjacent railroad rights of way, exterior lines of which are properly fenced. Pickett v. Toledo, St. L. & W. R. Co., 61 App. 26, 111 N. E. 434.

Under this section complaint for damages for animal killed on railroad held insufficient to state cause of action. Leary v. Cleveland, C., C. & St. L. Ry. Co., App. 123 N. E. 808.

5454. Duty of purchaser.

In view of this section, a railroad company was held not liable for stock killed by reason of a gate erected at the crossing in the right of way becoming out of order. Pittsburgh, C., C. & St. L. R. Co. v. James, 64 App. 456, 114 N. E. 833.