Chicago, I.&L. Ry. Co. v. State ex rel. Zimmerman

• Decision Date: 14 March 1902
• Citation: Chicago, I.&L. Ry. Co. v. State ex rel. Zimmerman, 158 Ind. 189, 63 N.E. 224 (Ind. 1902)
• Parties: CHICAGO, I. & L. RY. CO. v. STATE ex rel. ZIMMERMAN.
• Court: Indiana Supreme Court

158 Ind. 189

63 N.E. 224

CHICAGO, I. & L. RY. CO.

v.STATE ex rel. ZIMMERMAN.

Supreme Court of Indiana.

March 14, 1902.

Appeal from circuit court, Montgomery county; Jere West, Judge.

Petition, on relation of John M. Zimmerman, trustee, against the Chicago, Indianapolis & Louisville Railway Company.A peremptory mandamus was ordered, and defendant appeals.Affirmed.E. C. Field and W. S. Kinnan, for appellant.Harney & Harney, for appellee.

MONKS, J.

This proceeding was brought by appellee to compel appellant, by writ of mandamus, to construct a highway crossing at the intersection of a highway with appellant's railroad in Clark township, Montgomery county, Ind.The case was tried by the court, and a special finding of facts made, and conclusions of law stated thereon in favor of appellee, and a peremptory writ ordered requiring appellant to construct the crossing under the railroad.The errors assigned and not waived call in question all the conclusions of law jointly, and the action of the court in overruling appellant's motion for a new trial.

It appears from the special findings: That said highway runs east and west on a section line.That it was located on good, solid, and moderately level ground, and was maintained 30 feet wide.That before the construction of appellant's railroad across said highway the highway was clear and unobstructed.That a stream known as “Haw Creek” crossed said railroad 150 feet south of said crossing, and crossed said highway 215 feet west of said crossing.That said highway, before the construction of appellant's railroad, was above the high-water mark of said creek.Said appellant constructed an embankment across said highway, and laid its track thereon.Appellant carried said highway over said railroad at grade, by constructing approaches of earth on each side of said embankment.Said approaches were so constructed that they were only 10 feet wide at the surface, and have a grade from the commencement thereof to the crossing of 14 feet to each 100 feet.That it is impossible for a traveler on one side of said embankment to see a traveler on the other side, or an approaching train, until near the top of the embankment.The banks of each side of said approach are precipitous and steep, and the grade from the highway level to the top of the embankment so steep that a team cannot pull an ordinary load over the same; and in the winter season, when there is ice on the ground, it is almost impossible for animals to stand on said approaches.That said approaches are so narrow that the vehicles commonly used in that locality cannot pass thereon.Said railroad was not so constructed at said crossing as not to interfere with the free use of said highway, nor so as to afford security for life and property; and the same was not restored to its former state, or constructed in such manner as not to unnecessarily impair the usefulness thereof.That said crossing as constructed by the railroad company has interfered with the usefulness of said highway, and made the use of the same at that crossing dangerous to life and property, and caused the people living along said highway to avoid its use when it was possible to do so.

The fifth clause of section 5153, Burns' Rev. St. 1901(section 3903, Rev. St. 1881;section 3903, Horner'sRev. St. 1901), authorizes a railroad company to construct its road upon or across a highway so as not to interfere with the free use of the same, in such manner as to afford security for life and property, and requires such company to restore the “highway thus intersected to its former state, or in a sufficient manner not to unnecessarily impair its usefulness.”It is settled under said section that, when a railroad intersects a public highway, it is the duty of the railroad company to construct the crossing over its road, and to keep the same in safe and good condition.Straub v. Railroad Co., 135 Ind. 458, 35 N. E. 504;Evansville & T. H. R. Co. v. State, 149 Ind. 276, 278, 40 N. E. 2, and cases cited;Indianapolis & C. R. Co. v. State, 37 Ind. 489, 502, 504;Railroad Co. v. Claire, 6 Ind. App. 390, 393-397, 33 N. E. 918;Elliott, Roads & S.(2d Ed.) §§ 778-780;8 Am. & Eng. Enc.Law (2d Ed.) 360-374.It is also settled that the performance of this duty may be compelled by mandamus.Evansville & T. H. R. Co. v. State, 149 Ind. 276, 49 N. E. 2;Cummins v. Railroad Co., 115 Ind. 417, 419, 18 N. E. 6;8 Am. & Eng. Enc.Law (2d Ed.) 365, 370, 374;10 Am. & Eng. Enc.Law (2d Ed.) 873, 874;Elliott, R. R. §§ 1106, 1111.It will be observed that a railroad company is authorized to construct its road across a highway only on condition that it restore the highway “to its former state,” or place it in such condition “as not to unnecessarily impair its usefulness,” and that it construct its road across said highway “so as not to interfere with the free use of the same,” and “In such manner as to afford security for life and property.”Railroad Co. v. Cluggish, 143 Ind. 347, 350, 851, 42 N. E. 743;Railroad Co. v. Pritchard, 131 Ind. 564, 565, 566, 31 N. E. 358;Railroad Co. v. Crist, 116 Ind. 446, 454, 457, 10 N. E. 310, 2 L. R. A. 450, 9 Am. St. Rep. 865;Railroad Co. v. Cavender, 113 Ind. 51, 14 N. E. 738;Railroad Co. v. Smith, 91 Ind. 119, 121;Seybold v. Railroad Co., 18 Ind. App. 367, 378-380, 46 N, E. 1054;Railroad Co. v. Claire, 6 Ind. App. 390, 393-397, 33 N. E. 918;Elliott, R. R. §§ 1105-1112.It was said by this court in Railroad Co. v. Crist, 116 Ind. 446, 454, 19 N. E. 314, 2 L. R. A. 450, 9 Am. St. Rep. 865: “The statute prescribes a plain duty.Indeed, the duty exists independent of the statute, but the statute makes it all the more clear and positive.The right to interfere with a highway is coupled with the duty to make it as safe as it was before it was disturbed, or at least to use reasonable care and skill to do so.This duty is violated if there is a failure to restore it to its former condition, in all cases where the exercise of reasonable care and skill can effect a restoration.”It may be that a highway cannot in all cases be restored to its former state, but in such cases the railroad company is bound to place the same in such condition as not to impair its usefulness more than the additional use of a railroad crossing renders absolutely necessary.Elliott, Roads & S.(2d Ed.) §§ 778-780;Elliott, R. R. §§ 1105, 1107;19 Am. & Eng. Enc.Law (2d Ed.) 874.It being the duty of a railroad under the statute at all times and under all circumstances to keep the highways, where they are crossed by the railroad, in such condition and state of repair as not to impair their usefulness, nor interfere with their free use, and so as to afford security for life and property, if this cannot be done by a grade crossing the company must do it by carrying its tracks either over or under the highway, or the highway over or under its tracks.The duty of restoring and maintaining the free and safe use of the highway includes whatever is necessary to accomplish that object, which is necessary by reason of the construction of the railroad.Elliott, R. R. § 1107;Elliott, Roads &S. §§ 778-780;State v. St. Paul, M. & M. Ry. Co., 35 Minn. 131-136, 28 N. W. 3, 59 Am. Rep. 313, and cases cited;State v. Minneapolis & L. M. Ry. Co., 39 Minn. 219, 223, 224, 39 N. W. 153;State v. St. Paul, M. & M. Ry. Co., 38 Minn. 246, 36 N. W. 870;People v. Dutchess & C. R. Co., 58 N. Y. 152.As was said in Elliott, R. R. § 1107: “It is impossible to lay down any rule defining just what...