Applegate v. Cincinnati & Harrison Turnpike Co.

The horse of the plaintiff; was injured by being driven at-night against a toll gate belonging to the defendant company, which had been lowered by the keeper and kept down without light or other warning. Plaintiff had used the toll road for many years, both by day and night, did not pay each time as he passed, but paid his bills monthly, and had never before known the toll gate to be lowered. He claims to have exercised due care.

The defendant demurs, and relies upon the fact that it was operating under a charter granted upwards of eighty years ago, permitting it to establish the toll gate, to collect toll, and that it is not liable for an injury such as the one complained of.

The demurrer is not well taken, because the petition does state facts sufficient to constitute a cause of action. In assuming to collect toll and to grant owners of vehicles the right to use its road in return therefor the defendant company rendered itself liable in damages for any injuries caused by its own wrongful acts. The demurrer should be overruled.