The Evansville And Terre Haute Railroad Co. v. Taft

• Decision Date: 16 September 1891
• Docket Number: 284
• Parties: THE EVANSVILLE AND TERRE HAUTE RAILROAD COMPANY v. TAFT
• Court: Indiana Appellate Court

28 N.E. 443

2 Ind.App. 237

THE EVANSVILLE AND TERRE HAUTE RAILROAD COMPANY v. TAFT

No. 284

Court of Appeals of Indiana

September 16, 1891

From the Sullivan Circuit Court.

Judgment affirmed.

J. E Iglehart, E. Taylor, J. T. Hays and H. J. Hays, for appellant.

J. T Beasley and A. B. Williams, for appellee.

OPINION

BLACK J.

This was an action to recover damages for the destruction of the appellee's threshing machine by the locomotive and train of the appellant.

The complaint was in three paragraphs, the first and third being for wilful injury, the second for negligent injury.

A special verdict was returned, and the appellant's motion for a venire de novo and its motion for a new trial having been overruled, judgment for three hundred dollars was rendered for the appellee.

In the special verdict it was found that on the 19th of August 1889, the appellee was the owner of a threshing machine of the value of $ 300, which on that day was struck by a locomotive engine and train of cars on appellant's track, and was entirely destroyed, which locomotive and train of cars belonged to and were operated by the appellant; that on said day said machine was in charge of one John H. Bolinger, who was acting for the appellee; that on said day, in the evening, shortly after dark, it being a clear, starlight evening, and light enough for ordinary travel, said Bolinger was taking said machine, and an engine and water-tank used in connection therewith, to the farm of one Charles W. Lovelace, for the purpose of threshing grain on the following day; that the usual and ordinary way in going to said farm was over "a private farm crossing, across the appellant's track, leading to said farm from a public highway running along the east side of the right of way, and parallel with the appellant's road," from the town of Shelburn, south, to the town of Currysville, on the north, both in Sullivan county, Indiana, said towns being one-half mile apart; that there was no fence between said public highway and the appellant's railroad track between said towns; that said "farm crossing" was not at a public highway or street, but was used for the purposes of travel as ordinary public highways are used; that at said time, in going to said farm, said Bolinger attempted to take said machine across appellant's track over said "farm crossing;" that said machine was then drawn by a team of horses, each three years of age, well broken, which team had been used to said machine for three weeks prior to that time; that said "farm crossing" at that time was in bad repair, in that some of the ties of which it was constructed were rotten; that before attempting to cross with said machine, said Bolinger walked upon and over said crossing and examined it, and did not observe that it was out of repair, and did not know that it was out of repair; that after having examined said crossing, the engine used in connection with said machine was hauled safely over said crossing; that after said engine had so passed over, said Bolinger again examined said crossing, and did not discover or ascertain that it was rotten or out of repair; that thereupon, upon the direction of said Bolinger, the driver managing said machine attempted to drive the same over said crossing, and in so doing drove along the center of said crossing until the front wheels of the trucks on which said machine was hauled had passed across the railroad track, and the hind wheels of said trucks were between the rails of the railroad track, which there runs north and south, when, the front wheels of said trucks having struck one of said rotten ties, said tie broke and gave way, and let said trucks down into the ditch running under said ties; that in attempting to drive said machine over said crossing, the driver thereof drove in a careful manner; that when said truck broke through said crossing as aforesaid, it thereby became impossible, for the time being, to remove said machine off said railroad track with the means then at hand; that at a point one-half mile south of said crossing was and is the town and station of Shelburn; that within one-fourth of a mile north of said crossing there was and is a coal station, then used by appellant for coaling its locomotive engines; that ten minutes prior to the attempt made as aforesaid to take said machine over said crossing, the locomotive engine which afterward struck said machine left its said train at said Shelburn station and went to said coal station, and took coal and passed back over said crossing to its train, which fact the parties in charge of said machine then knew; that at the time the attempt was made to take said machine over said crossing, said locomotive engine and its train of cars were standing at said Shelburn station, "which fact the parties in charge of said machine then saw and knew;" that said train was a freight train of twenty-nine cars going north, and had the headlight of the engine burning, which headlight was dirty to an extent that interfered with its use, but those in charge of said machine saw the same when at said station; that the engine connected with said separator was taken over said crossing while said locomotive engine and train were standing at said station and before the same had started north therefrom; that just at the time the driver in charge of the machine started to drive the same over said crossing, said locomotive and train, being then one-half mile south from said crossing, started north from said station, which fact those in charge of said machine then knew; that as soon as said machine broke through said crossing, those in charge of said machine attempted to extricate and remove the same with said team, and by lifting and prying in aid thereof, but could not remove said machine with any means at their command; that as soon as they ascertained that they could not remove the same, one Ed Snyder was sent down said railroad track to signal said train; that said Snyder thereupon started toward said...