Cleveland, C., C. & St. L. Ry. Co. v. Means

• Decision Date: 02 April 1915
• Docket Number: No. 8086.,8086.
• Citation: 108 N.E. 375,59 Ind.App. 383
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. MEANS.
• Court: Indiana Appellate Court

59 Ind.App. 383

108 N.E. 375

CLEVELAND, C., C. & ST. L. RY. CO.

v.MEANS.

No. 8086.

Appellate Court of Indiana, Division No. 1.

April 2, 1915.

On petition for rehearing. Petition overruled.

For original opinion, see 104 N. E. 785.

Frank L. Littleton, of Indianapolis, Leonard J. Hackney, of Cincinnati, Ohio, and Charles P. Stewart, of Indianapolis, for appellant. Emrick & Deupree and B. F. Watson, all of Indianapolis, for appellee.

HOTTEL, C. J.

Appellant has filed a petition for rehearing in this cause with briefs in support thereof in which it very earnestly insists that the court in its original opinion has run counter to the decisions of the Supreme Court and to all authority in all jurisdictions where the same facts have been before the courts, and that the opinion “declares a new rule of conduct.”

We assume that this statement is based on appellant's understanding of the facts of the case which, put in its own words as set out in such briefs, is as follows:

“Stripped of all sentiment, the facts were that over the repeated objections of the appellant, men and boys at times did come upon its tracks at a place on its private highway between streets not used as a highway or a playground, to steal wheat that dropped from cars and sell it; that decedent's custodian invited him on the tracks where there were ten stationary cars on a main lead, and later directed him to crawl under the ninth and tenth cars from a point where and at a time when appellant's employés were about to couple an engine and six cars to said ten cars; that decedent was killed while crawling under the cars while appellant's employés were engaged in the act of coupling; that appellant had one employé on the first of the backing cars and one walking ahead of the cut, and the engine bell was ringing; that the three boys were concealed under and between the ninth and tenth cars and were not seen by the employés of the appellant, and could not have been seen except by searching under and between the ten standing cars.”

[1] This statement could hardly be regarded as correct, even if measured by the evidence most favorable to appellant, whereas the court in determining the question it was considering in the opinion was required to look only to that evidence most favorable to appellee.

As stated in the original opinion our examination of the evidence convinces us that each material averment of the complaint had some evidence for its support. It is undisputed that appellee's decedent was killed, not on appellant's main line, but on a switch or side track which led from its main line along the south embankment of the canal of the Indianapolis Water Company across West street and Blackford street in said city to the manufacturing plant of Love Bros. Both West street and Blackford street were public thoroughfares in said city, and the city of Indianapolis maintained a public park, called “Military Park,” immediately north of said canal which was bounded on the north by New York street, on the east by West street, and on the west by Blackford street. This park was in a densely populated part of the city, was supplied with amusements of various kinds, and matrons were kept in attendance to look after the children who came there to play. During the summer and autumn months children in great numbers congregated in the park and in its vicinity to play. The southwest corner of the park was within 75 feet of appellant's switch at the point where it crossed Blackford street. The Acme-Myers Milling Company was located at this corner, and it was at or near this corner that appellee's decedent was run over and killed by one of appellant's cars. The car that ran over him was one of several wheat cars that had been placed on such switch in front of the milling company. Some of these cars had been unloaded and quantities of wheat had leaked from the cars, or in some manner dropped on the ground under such cars and on the track near the cars. The leakage of wheat from cars on appellant's tracks at said point had been more or less frequent and continuous for a number of years, and there was an abundance of evidence showing that the children of the park and vicinity had been in the habit of frequenting appellant's tracks at this point. They were frequently seen on and near such tracks at said point gathering up wheat and playing and fishing along the bank of the canal. The testimony of one witness on this subject, as set out in appellant's original brief, is as follows:

“That he resided at 126 North Blackford street and was employed by the Union American Cigar Company in the wholesale cigar business. That he had lived at his present address nine years. That he had seen children around the canal there fishing and around the railroad track. That the children fished from the trestlework over the canal and...