Kistner v. City of Indianapolis

Citation100 Ind. 210
Decision Date13 February 1885
Docket Number10,458
PartiesKistner, Executrix, v. City of Indianapolis et al
CourtSupreme Court of Indiana

From the Marion Superior Court.

The judgment is affirmed, with costs.

N. B Taylor, F. Rand and E. Taylor, for appellant.

C. S Denny, T. A. Hendricks, A. W. Hendricks, C. Baker, O. B Hord, A. Baker and E. Daniels, for appellees.

OPINION

Howk, J.

This was a suit by the appellant, Rosina Kistner, executrix of the last will of John G. Kistner, deceased, against the appellees, the City of Indianapolis and the Union Railway Company of Indianapolis, to recover damages for the death of her testator, caused, as alleged, by the wrongful acts or omissions of the appellees, and each of them. The appellant's complaint was in three paragraphs, to each of which the separate demurrers of the appellees, who severed in their defence, were sustained by the court at special term. The appellant excepted to these rulings of the court, and, declining to amend or plead further, judgment was rendered against her for the appellees' costs. On appeal this judgment was affirmed by the general term, and from the judgment of affirmance this appeal is now here prosecuted.

By a proper assignment of error, the appellant has brought before this court for decision the question of the sufficiency of the facts stated in each paragraph of her complaint to constitute a cause of action in her favor and against each of the appellees.

In the first paragraph of her complaint, the appellant alleged that each of the appellees was a corporation organized and acting under the laws of this State; that there was, and had been, in the city of Indianapolis, since its original survey, a public street called "Illinois street," which had been and was used for travel and passage as a public street; that Illinois street ran north and south through the city of Indianapolis, and on and adjoining such street, on the east side thereof, and between two streets of such city called Louisiana street and McNabb street, which ran east and west at right angles with Illinois street, the appellee, the Union Railway Company, owned the building and premises known as and called the "Union Depot," and seven railroad tracks connected therewith; that five of such railroad tracks were laid down in and ran through such Union Depot from east to west, and extended entirely across Illinois and its west sidewalk, and two of such railroad tracks were laid down in and ran along Louisiana street, and across Illinois street and its west sidewalk, nearly parallel with the other five tracks and immediately north of and only a few feet from the most northerly of such five tracks, and that the distance from the north edge of the most northerly of the seven tracks, to the south edge of the most southerly of the same, did not exceed two hundred feet; that the seven railroad tracks were laid down and owned by the appellee, the Union Railway Company, to which company the appellee, the city of Indianapolis, granted and gave the right to use and occupy the said part of Illinois street for, with and by such railroad tracks, and to maintain and use the same for running trains out of, into and from such depot by steam locomotives; that such grant was made by the city of Indianapolis to the Union Railway Company more than ten years prior to the filing of this complaint, and immediately thereafter the company laid down the railroad tracks, and had since maintained and used the same for running trains of cars into, through and from the Union Depot by means of locomotives propelled by steam; that the city of Indianapolis knew, when it made such grant and gave such permission to occupy such street with and lay the railroad tracks in and across Illinois street, that it would make the crossing dangerous and liable to accident; that the seven tracks were used by fourteen railroad companies in connection with the Union Depot, by license of the Union Railway Company, which fourteen companies pay the Union Railway Company toll or rent for the use of the depot and its tracks, and trains of cars drawn by locomotives, propelled by steam, were and had been passing and repassing on and over the seven tracks, or some of them, across said part of Illinois street and the west sidewalk thereof, every hour in the day and night for ten years, and sometimes trains were passing on each track at the same time.

Appellant further alleged that it was the duty of the city of Indianapolis when it made such grant to the Union Railway Company of the right to occupy Illinois street with its railroad tracks, and to use the same in connection with its depot for the purposes aforesaid, to provide for the proper care and protection of such street and sidewalk, at the crossing of the railroad tracks, and to require that the Union Railway Company should provide for and maintain the proper and suitable protection and safeguards, so that the passage of vehicles and passengers on, along and over the part of Illinois street and sidewalk used, occupied and crossed by the seven railroad tracks, would be safe and convenient for travel and passage, and kept in that condition, and to see that the Union Railway Company suitably and properly protected and provided for the safe passage over and use of such part of Illinois street and sidewalk by the citizens of the city and the public generally, having occasion or need to pass on, along or over the same; and in case of the failure of the Union Railway Company so to do, or if the city of Indianapolis failed to compel such company to make and keep up such protection and safeguards, it was then the duty of such city to make, keep up and continue such provisions for the protection of said crossings; but the appellant averred that the city of Indianapolis had wholly disregarded its duty in that behalf, and did not require the Union Railway Company to put and properly keep up suitable guards, and provide for their maintenance and use, so as to protect travellers along such street and across such railroad tracks from harm, and had never taken any steps to compel such company so to do; that the Union Railway Company had never put up, nor kept and maintained, proper or sufficient guards upon, nor on either side of, such seven tracks, nor made suitable or any provision, nor kept up, maintained and used the same, for the protection of travellers on or along and across the part of Illinois street and sidewalk, across such railroad tracks, although it was the duty of such company so to do, without order from or compulsion by the city of Indianapolis; and that the Union Railway Company knew that the crossing was dangerous, and accidents were liable to happen at any hour of the day or night, and that it was necessary the crossing should be protected and guarded to prevent accidents from the use of such tracks.

The appellant then alleged, at great length and with some repetition, the duty of the city of Indianapolis to provide and maintain proper and suitable safeguards for the protection of all persons passing to and fro on Illinois street and its sidewalk, in vehicles or on foot, over the crossing of the seven railroad tracks, the knowledge of the city that the crossing was very dangerous, and that accidents were liable to occur there at any time, and the total failure of the city, with such knowledge, to provide or maintain any safeguards or protection at such crossing, and that no guards or protection of any kind had ever been provided or used to protect from harm or injury travellers or passengers, on foot or in vehicles, upon such part of Illinois street and sidewalk, across such railroad tracks, although such provision and protection were of the first necessity; that the...

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29 cases
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