74 N.E. 896 (Ind. 1905), 20,617, Southern Indiana Railway Company v. Norman

Docket Nº:20,617
Citation:74 N.E. 896, 165 Ind. 126
Opinion Judge:Monks, C. J.
Party Name:Southern Indiana Railway Company v. Norman
Attorney:F. M. Trissal and Brooks & Brooks, for appellant. W. R. Martin, W. H. Martin, R. R. Boruff and J. E. Boruff, for appellee.
Case Date:June 09, 1905
Court:Supreme Court of Indiana
 
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Page 896

74 N.E. 896 (Ind. 1905)

165 Ind. 126

Southern Indiana Railway Company

v.

Norman

No. 20,617

Supreme Court of Indiana

June 9, 1905

From Lawrence Circuit Court; James B. Wilson, Judge.

Action by Elmer C. Norman against the Southern Indiana Railway Company. From a judgment on a verdict for $ 600, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Affirmed.

F. M. Trissal and Brooks & Brooks, for appellant.

W. R. Martin, W. H. Martin, R. R. Boruff and J. E. Boruff, for appellee.

OPINION

Page 897

[165 Ind. 127] Monks, C. J.

This action was brought by appellee to recover damages for personal injuries alleged to have been caused by appellant's employes "negligently, carelessly and unlawfully placing a hand-car filled with tools, coats, dinner buckets and other objects and things of said employes," upon the public highway, within two feet of the traveled track thereof. Appellant's demurrer to the complaint for want of facts was overruled. A trial of said cause resulted in a verdict, and, over a motion for a new trial, a judgment in favor of appellee.

The errors assigned are: (1) The court erred in overruling the demurrer to the complaint; (2) the court erred in overruling the motion for a new trial.

It appears from the complaint that at a point about one-half mile north of Norman, a station along appellant's road, a public highway crosses said appellant's railroad track, and that for the purposes of said public highway appellant has built and maintained a crossing at grade; that after crossing said railroad track said highway intersects a road, traveled by the public, running for about one-half mile parallel with said railroad. It is alleged that "Said last-named road was used at will by the [165 Ind. 128] general public, and was plaintiff's route from his home, which is situated on the same, to the first-mentioned road at its point of intersection with said railway; that on the 17th day of July, 1903, the plaintiff was driving on said parallel road a pair of gentle, well-broken mules hitched to a cultivator; that on said day the servants and employes of defendant railway company were engaged in surfacing the roadbed of said railway, and had ridden on a hand-car to the point at which said railway intersected said first-mentioned road, and, upon reaching said crossing, said defendant, its servants and employes, carelessly, negligently and unlawfully removed said hand-car from the track of said railway, and ran same out upon the side of said first-mentioned roadway about fifty feet from said railway and about twenty-five feet from the point of...

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