On Petition foe a Reheaeing.
Nibeack, J.A petition for a rehearing has been filed in this case, and in a brief accompanying it, bitter complaint is made that we did not at the former hearing consider the cause upon the theory upon which it was tried in the court below, accompanied with an intimation that we certainly did not read the evidence given at the trial with as much care as it was our duty to have done injustice to the appellee.
We, nevertheless, did read the evidence very carefully, and, although we did not deem it then necessary to say so, we. came to the conclusion that the case had been tried upon an utterly erroneous theory, and that the judgment might have been rightfully reversed for that reason alone.
The averment of the complaint was, as has been already stated, that the horses entered upon the railway track at a point at which it was not securely fenced, and the evidence showed beyond all controversy that they entered the track, or, which was, in legal contemplation, the same thing, into an open area adjoining the track, at Wesley station, near, if not quite, a half a mile east of where four of the horses were killed, and a very material distance east of the place at which the other horse ran into the cattle-pit and was also killed.
The real condition of the track with reference to fencing, *301at Wesley station, became, therefore, under the issues and the evidence, the controlling question at the trial.
In eases like this, it is the condition of the road at the place at which the animals entered upon the track, and not where they were killed, which becomes the material question for decision. Toledo, etc., R. W. Co. v. Stevens, 63 Ind. 337; Wabash, etc., R. W. Co. v. Forshee, 77 Ind. 158; Louisville, etc., R. W. Co. v. Porter, 97 Ind. 267; Louisville, etc., R. W. Co. v. Thomas, 106 Ind. 10.
It is true that much of the evidence introduced at the trial had reference to the condition of the cattle-pit into which one of the horses fell, and over which the others leaped, and counsel, during the progress of the trial, seemed to regard that as the pivotal question in the cause, but, for the reasons given, it was a merely incidental and immaterial question.
After the horses got upon the track in front of the locomotive, they would probably have been in less danger if there had been no cattle-pit, over which they were compelled to pass. The more impassable the cattle-pit may have been, the greater obstruction it would have been to the horses in their effort to escape from the train. However securely constructed the cattle-pit in question may have been, and however well kept in repair, it would have afforded the railway company no defence if its road ought to have been fenced where the horses entered upon it, that is, at Wesley station.
If counsel choose, and are permitted by the nisi prius court, to try a cause upon a theory outside of any issue formed by the pleadings, it does not follow that the cause must be reviewed in this court upon the same theory; on the contrary, such a trial is mis-trial, and can not be sustained by this court, except, perhaps, in a case in which a palpably just conclusion has been reached upon the real merits of the cause.
The petition for a relaearing is overruled.
Filed Jan. 26, 1887.