Louisville v. Phillips

• Citation: 13 N.E. 132,112 Ind. 59
• Court: Supreme Court of Indiana
• Decision Date: 12 October 1887
• Parties: Louisville, N. A. & C. Ry. Co. v. Phillips.

112 Ind. 59

13 N.E. 132

Louisville, N. A. & C. Ry. Co.

v.Phillips.

Supreme Court of Indiana.

October 12, 1887.

Appeal from circuit court, Lawrence county.

Action for personal injuries.George W. Friedley and Wm. H. Martin, for appellant. East & East and Geo. W. Cooper, for appellee.

Elliott, J.

The appellee alleges in the first paragraph of his complaint that the track of the appellant is laid upon Railroad street in the city of Bloomington for the distance of one-half of a mile; that it crosses several streets, among others Fourth and Fifth streets; that in constructing the track a space of three or four inches was left between the guard-rail and the rails of the track; that on the twenty-seventh day of December, 1881, the appellee, without any fault or negligence on his part, was crossing the track, and caught his foot in the space between the guard-rail and the rails of the track; that the appellant negligently and carelessly ran one of its trains upon the appellee while his foot was fastened between the rails, and greatly injured him. The second paragraph of the complaint contains substantially the same allegations as to the appellant's negligence in running a train upon the appellee while his foot was fastened between the rails, as to his own care, and as to the occupancy of Railroad street by the appellant's track; but it also alleges that for the use of persons traveling upon the street the appellant had constructed and maintained a walk or platform, and that it was guilty of negligence in constructing and maintaining the walk, thereby endangering the life and limbs of those who traveled over it. There was no demurrer addressed to the complaint, nor is there any attack upon it that we can properly notice, although counsel have assigned as error rulings upon demurrers to each paragraph of the complaint. We do not, therefore, pass upon the sufficiency of the complaint, but confine our decision to such questions as are properly presented.

The material facts which are established by the evidence are these: In 1853 the track of the appellant was constructed upon and along Railroad street, in the city of Bloomington, and has since been maintained and used. Between the tracks of the company and on each side the ground is covered by planks. On the twenty-seventh day of December, 1882, the appellee, a lad about eight years of age, was sent on an errand, and passed down Fifth street until he reached Railroad street, and there entered upon the track laid in the street. From this point he walked towards Fourth street, and when opposite the appellant's depot, and within 20 feet of Fourth street, his foot was caught between the rail of the track and the plank on the inside of the track. His foot was so firmly fastened that he could not extricate it, and while he was thus fastened a train of cars was run upon him, and he was very severely maimed and injured. The employes of the appellant were guilty of negligence in the management of the train, but there was no intentional or willful wrong on their part. The track was negligently constructed and maintained, and was in such a condition, through the fault of the company, as to endanger the lives and limbs of those walking along the track laid in the street.

It is important to keep in mind the fact that the injury to the appellee did not occur at a street crossing, but at a point on the track laid along a street 20 feet north of the crossing. If the injury had been caused solely by the negligence of the appellant in constructing or maintaining the crossing, there would be no doubt as to the appellee's right of recovery; for it is the duty of a railroad company to maintain street or highway crossings, changed by it for its own purpose and convenience, in a reasonably safe condition for passage. Delzell v. Railroad Co., 32 Ind. 45; Railroad Co. v. Stout, 53 Ind. 143; Railway Co. v. Smith, 91 Ind. 119; Railroad Co. v. McLendon, 63 Ala. 266; Kelly v. Railway Co., 28 Minn. 98, 9 N. W. Rep. 588; Oliver v. Railroad Co., 9 Eng. R. 350; 2 Woods, Ry. Law, 1382.

But the appellee was not injured at a crossing, so that the rule we have stated cannot directly apply, although the principle which it asserts may exert an important influence in the decision of the case; for, if the place where the injury was infiicted was still a street, the principle the rule embodies does exert a potent influence. 2 Woods, Ry. Law, 958. If the place where the accident occurred was exclusively the track of the railroad company, in which the public had no rights, then there can be no recovery on the sole ground that the employes of the appellant were negligent in the management of the train which ran upon the appellee; for it does not appear, either by positive evidence or by inference, that they knew that the lad was fastened to the track. Had they known of his unfortunate situation, it would have been their duty, even had he been on a track in which the company's right was exclusive, to have used reasonable effort to bring the train to a stop. If the employes see a man bound to the rails in time to check the train, they must use reasonable measures to check it, and not suffer it to run upon the helpless man; but if they do not see him in time to check the train the company cannot be held liable, nor could it, even in such a case, be held, unless the employes knew of the helpless condition of the person on the track. Railroad Co. v. Pitzer, 109 Ind. 179, 6 N. E. Rep. 310, and 10 N. E. Rep. 70; Railroad Co. v. Huffman, 28 Ind. 287; Railroad Co. v. Miller, 25 Mich. 274. On the hypothesis that the place where the appellee received his injury was exclusively the roadway of the company, something must be superadded to the negligence of those in charge of the train in order to justify a recovery. On that hypothesis much more must be shown.

If the place where the lad caught his foot between the rail and the plank was the roadway of the company to the exclusion of the rights of the public, then there can be no recovery, even though the way was so unsafe that no citizen could walk along it without injury coming upon him. If the way was the exclusive roadway of the company, on which the public had no right of passage, then the company would not be liable to one who walked along it, unless the injury inflicted upon him was the result of willful or intentional misconduct. But if it was a street which the public had a right to use, then although it may have been occupied by the track of the company, the person who walks upon it is not a trespasser. It is true that circumstances may make him guilty of contributory negligence that will defeat a recovery, but the mere fact that he walks upon the highway does not make him a trespasser, although the railroad company has its track laid in the highway. A trespasser has no right to exact care from a railroad company, but one who is not a trespasser has a right to exact a reasonable degree of care if he is not himself in fault. It is not necessarily inferable that because both the railroad company and the public have rights in a street or highway that one who enters on the track in the street is a trespasser; nor, indeed, can it be inferred from that fact alone that he is guilty of negligence. If the way retained its character as a public one, it was not a wrong on the part of the citizen to carefully pass over it, even though it be conceded that, so far as respects the running of trains, the rights of the company are paramount. Although the rights of the company are paramount, still a right of action may exist in favor of one who is injured by the negligence of the company's servants. It may be true, and probably is true, that the railroad company has the superior right. Railroad Co. v. Butler, 103 Ind. 31, 2 N. E. Rep. 138. It cannot, however, be inferred from this that the citizen has no right to use the track for passage. He does have that right, but it is, perhaps, subordinate to the right of the company. The cases relied upon by appellant's counsel certainly do not sustain the doctrine that the paramount right of the company absolves it from duty to those who walk along the way upon which its tracks are laid.

The first case cited is Barker v. Railroad Co., 4 Daly, 274. All that is decided in that case is that a cartman is bound to get off the track when he sees a train approaching, and that the ordinary rules of the road do not apply. But it is tacitly conceded, if, indeed, not directly affirmed, that where a track is laid in a street the public may still use it, subject only to the right of the railroad company to move its trains over the track.

The second of the cases cited, and the one chiefly relied on, is that of Zimmerman v. Railroad, 71 Mo. 478. In that case it was conceded that as to crossings the rights of the citizen are paramount, but that where the track is laid along a street it is otherwise. We agree to the doctrine that the rights of the railroad are paramount so far as the running of trains is concerned, but we think that it is also so as to crossings, for citizens must concede the superior right of passage to the trains of the company wherever the trains are rightfully run. But the court did not hold the injured person to be a wrongdoer because he undertook to walk on the track, but he was held guilty of contributory negligence in carelessly going on the track in front of an approaching train. It is...