Chicago, I. & L. Ry. Co. v. Downey

• Decision Date: 20 January 1937
• Docket Number: 15062.
• Court: Indiana Appellate Court
• Parties: CHICAGO, I. & L. RY. CO. v. DOWNEY et al.

5 N.E.2d 656

103 Ind.App. 672

CHICAGO, I. & L. RY. CO. v. DOWNEY et al.

No. 15062.

Appellate Court of Indiana, in Banc.

January 20, 1937

Cope Judson Hanley, of Rensselaer, C. C. Hine, of Chicago, Ill and E. M. Hawkins, of Fowler, for appellant.

Tinkham & Tinkham, of Hammond, for appellees.

LAYMON Judge.

This is an action by appellant against appellees to recover property damage alleged to have been sustained by reason of one of appellant's trains being derailed in a collision with a trailer being operated by appellees along a highway, which trailer had become stalled upon the crossing of appellant's railway tracks and a highway designated as state highway detour No. 41. The cause was submitted to the court for trial, with the intervention of a jury, upon appellant's first paragraph of complaint and appellees' answer in general denial, resulting in a verdict and judgment in favor of appellees and against the appellant. A motion for a new trial was filed, which motion was overruled, and the appellant now prosecutes this appeal assigning as error the overruling of the motion for a new trial, which motion recites (1) that the verdict of the jury is not sustained by sufficient evidence; (2) that the verdict of the jury is contrary to law; (3) that the court erred in the submission of the adjoining counties upon granting a change of venue; (4) that the court erred in the rejection and admission of certain evidence; and (5) that the court erred in giving and refusing to give certain instructions.

The appellant complains of the rejection of certain offered testimony of S. L. Johnson, a witness for appellant, wherein appellant sought to prove the volume of traffic using the crossing before the highway was made into a state detour (at least three months before the accident in question) upon the theory that the increase of traffic, due to the highway being used as a state detour, required a different kind of crossing and the kind of a crossing which appellant was not required under the law to maintain. There was no error in the rejection of this testimony, inasmuch as this evidence was immaterial, for the reason that the standard by which the duty of the appellant company in maintaining its crossing is measured is based upon the use being made of the highway at the time of the accident. Furthermore, the exclusion of this evidence was harmless, inasmuch as it was shown that appellant had ample time and opportunity to construct a crossing to meet the requirements of the increase in traffic.

Appellant complains of error of the court in permitting appellees' witness Eder to testify to a conversation had with a Mr. McCullen without showing that Mr. McCullen was an employee of appellant or had any authority to bind the appellant company. It appears from the evidence of the witness Bergerner that Mr. McCullen was connected with the Monon Railroad (appellant company) in 1928; that he was roadmaster over that part of the railroad including the crossing in question; and that the witness knew these facts, as he had worked with McCullen as roadmaster. This evidence was sufficient to establish the competency of the conversation, and there was no error in its admission.

The appellant particularly relies upon the error of the court in the giving of instruction No. 3 on the court's own motion, each of the instructions Nos. 18, 20, 27, and 31 tendered by appellees, and the refusal to give each of the instructions Nos. 17 and 18 tendered by appellant. All of these instructions presented the question of whether there was any duty upon appellant to maintain the crossing and the approaches thereto in question, when the highway had been designated as a state detour by the State Highway Commission of Indiana. The appellant concedes that it was its duty to maintain the crossing and the approaches thereto prior to the enactment of section 8312.6, Burns' Supp. 1929, section 8690, Baldwin's Ind.St.1934, Acts 1927, c. 32, p. 87, but contends that said act of 1927 (section 8312.6, Burns' Supp.1929, section 8690, Baldwin's 1934) repealed by implication section 8697, Burns' 1926, section 8783, Baldwin's 1934, Acts 1905, § 35, c. 167, p. 521, also section 12947, Burns' 1926, section 14116, Baldwin's Ind.St.1934, 1 Rev.St.1852, § 22, c. 83, p. 409, and also section 12931, Burns' 1926, section 14099, Baldwin's Ind.St.1934, 1 Rev.St.1852, clause 5 of section 13, c. 83, p. 409, as amended, and that said section 8312.6 Burns' Supp.1929, section 8690, Baldwin's Ind.St.1934, imposes upon the State Highway Commission the duty to maintain the railway crossings and the approaches thereto intersecting highways used as state detours.

Section 8312.6, Burns' Supp.1929, Acts 1927, c. 32, p. 87, section 36-142, Burns' 1933, section 8690, Baldwin's Ind.St.1934, including the title, reads:

(Title) "An Act requiring the state highway commission to keep county and township highways used as detours in a safe and adequate condition to accommodate the traffic using such detours, and to place such highways in as good condition when discontinued as detours as when they were designated, providing for the establishment of run arounds, and providing the manner of paying the expenses incurred in carrying out the provisions of this act."

(Burns' Ann.St.Supp.1929, § 8312.6; Baldwin's Ind.St.1934, § 8690) "Whenever it shall become and be necessary for the state highway commission to designate and and use any county or township highway as a detour, while any state highway, or any part thereof, or any state highway bridge thereon, is closed to the public as a thoroughfare, while under construction, or while being repaired, or when closed for any other reason, it shall be the duty of the state highway commission to keep such highway so used as a detour in a reasonable state of repair at all times while such highway is being used as a detour, and when the state highway which was temporarily closed shall be reopened to traffic, as a public thoroughfare, the state highway commission shall place such county or township highway so used as a detour in as good a condition as such highway was in when designated as a detour highway by the state highway commission. In all cases where practicable or expedient, the state highway commission shall establish run arounds, instead of detours, and for that purpose may install temporary structures or other facilities to render such run arounds usable by persons traveling over such highway. Any expenses which may be incurred by the state highway commission in carrying out the provisions of this act shall be paid out of the construction fund or the maintenance fund of the state highway commission or out of any other fund which may be provided by law for the purpose of maintaining detours."

Section 8697, Burns' 1926, section 8783, Baldwin's Ind.St.1934, Acts 1905, § 35, c. 167, p. 521, section 36-1701, Burns' 1933, including the title, reads:

(Title) "An Act concerning highways."

(Section 8697) "Every steam or electric railroad company shall have the right to construct its railroad across any stream, water-course, road, highway, railroad or canal which the route of its road shall intersect, in such manner as not to interfere with the free use of the same and so as to afford security for life and property; but such railroad corporation shall restore and maintain the stream or water-course, road, highway or canal thus intersected to and in its former state, or in a sufficient manner not unnecessarily to impair its usefulness or injure its franchises. Whenever the track of such railroad shall cross a road or highway, such crossing may be at grade or such road or highway may be carried under or over the track, as may be most expedient; and, in cases where an embankment or cutting shall make a change in the line of such road or highway desirable, with a view to a more easy ascent or descent, the said railroad corporation may take such additional lands for the construction of such road or highway, or such new line as may be deemed requisite. Unless the lands so taken shall be purchased or voluntarily given for the purposes aforesaid, compensation therefor shall be ascertained in the manner provided by law, and duly made by such corporation to the owners and persons interested in such lands; and the same, when so taken and compensation made, shall become a part of such intersecting road or highway, in such manner and on such terms as the adjacent parts of such highway may be held for highway purposes."

Section 12947, Burns' 1926, section 14116, Baldwin's 1934, 1 Rev.St.1852, § 22, c. 83, p. 409, section 55-617, Burns' 1933, including the title, reads:

(Title) "An Act to provide for the incorporation of railroad companies."

(Section 12947) "Whenever the track of such railroad shall cross a road or highway, such road or highway may be carried under or over the track, as may be most expedient; and in cases where an embankment or cutting shall make a change in the line of such road or highway desirable, with a view to a more easy ascent or descent, the said company may take such additional lands for the construction of such road or highway, or such new line, as may be deemed requisite by said directors. Unless the lands so taken shall be purchased or voluntarily given for the purposes aforesaid, compensation therefor shall be ascertained, in the manner in this act provided, as nearly as may be, and duly made by such corporation to the owners and persons interested in such lands; and the same, when so taken and compensation made, shall become part of such intersecting road or highway, in such manner and by such terms as the adjacent parts of such highway may be held for highway purposes."

Section 12931, Burns' 1926, section 14099, Baldwin's 1934 Acts 1852, ...