Baltimore & O.S.W.R. Co. v. Slaughter, No. 20,874.

Docket NºNo. 20,874.
Citation167 Ind. 330, 79 N.E. 186
Case DateNovember 13, 1906
CourtSupreme Court of Indiana

167 Ind. 330
79 N.E. 186

BALTIMORE & O. S. W. R. CO.
v.
SLAUGHTER.

No. 20,874.

Supreme Court of Indiana.

Nov. 13, 1906.


Appeal from Circuit Court, Clark County; H. C. Montgomery, Judge.

Action by William P. Slaughter against the Baltimore & Ohio Southwestern Railroad Company. From a judgment for plaintiff, defendant appeals. Transferred from the Appellate Court under Burns' Ann. St. 1901, § 1337u. Affirmed.

[79 N.E. 187]


Chas. L. Jewett, for appellant. L. A. Douglass and H. W. Phipps, for appellee.

GILLETTE, J.

According to appellee's complaint, appellant carelessly and negligently left within the traveled way of a farm crossing, and as an obstruction to the free use of the same, a hand car, having upon it tools, tin dinner buckets, and clothing, and, as a result of the negligence charged, one of the animals, a mule, composing the team which appellee was driving along said way and across said track, became frightened at the hand car and ran away, throwing appellee out of his wagon and injuring him. Appellant, having been defeated in the trial court, prosecutes this appeal, and by its first assignment of error draws in question the propriety of the ruling of the court below in overruling a demurrer to the complaint.

It is contended by appellant's counsel that, so far as the complaint shows, appellee was a bare licensee, and that, having availed himself of the privilege of using the crossing, he was bound to accept it as he found it, or, in other words, that appellant could not properly be charged with negligence in having the car within the way. The allegations of the complaint concerning appellee's authority to use the crossing are as follows: “That said part of said railroad which runs through the said Clark county extends from the city of New Albany to the city of North Vernon, Ind.; that, at a point on said line of road, about five miles northeast of the said city of New Albany, Ind., and about 300 yards northeast of what is called and known as the “K. and L.” cement mills, defendant had, before the said - day of November, 1903, constructed a private wagon road crossing of its said railroad track at said point, and which said crossing was then and there for the use and benefit of the owners of the adjoining lands on opposite sides of said railroad track at said point, and for their tenants and for all others who might have occasion to cross over and use the same in the use of the said lands aforesaid; that said crossing was on said day properly constructed by fastening planks eight feet wide to the ties in said track and filling in between them with broken stone, and defendant had also constructed approaches, being constructed of earth thrown up in the form of embankments and covered with broken stone, and the said approaches were about 30 feet in length and not to exceed 10

[79 N.E. 188]

feet in width; that on said day plaintiff was a tenant of the person who owned the adjoining lands on either side of said track at said crossing, and had been for more than one year, and had on many occasions before said day used the said crossing in the prosecution of his said work as tenant; and that he cultivated the said adjoining lands as farming lands as such tenant, and on said day was entitled, as such tenant, to use the said crossing with wagons and teams in the prosecution of his said work; *** that about 5 o'clock in the afternoon of said day the said plaintiff was lawfully driving a team consisting of one mule and one horse, attached to a two-horse wagon, from one portion of his said farm to another on the opposite side of said track of defendant, and, in so doing, had occasion to drive over and upon said crossing.” In their statement of the contents of the complaint, appellant's counsel fully admit that it appears that appellee was a tenant of the adjacent farm, and that he went upon the crossing in the prosecution of his farm work. It is doubtless the rule that a bare licensee who goes upon the premises of another for some purpose with which the owner or occupant has no concern, and without any enticement, allurement, or inducement being held out to him by the owner or occupant, assumes the perils arising from defects existing in the premises. Within this class of cases are Lingenfelter v. Baltimore, etc., R. Co., 154 Ind. 49, 55 N. E. 1021, and Cannon v. Cleveland, etc., R. Co., 157 Ind. 683, 62 N. E. 8.

Putting aside all question as to the effect of the act of April 8, 1885 (section 5320 et seq., Burns' Ann. St. 1901), we are nevertheless of opinion that the facts charged do not make out a case in which appellee's entry upon the railroad was simply not opposed and prevented. While it is true that it does not appear that the intent of the company in respect to the construction and maintenance of the crossing was ever communicated to anyone, or that appellee acted upon the assumption that the crossing was designed for his use, yet, taking the subjective intent in respect to the purpose of its construction and maintenance, coupled with the fact that the planking of the space between the rails and the building of the long approaches on either side tended to show objectively what the intent was, and adding to this the frequent prior user of the way by appellee, we have a case wherein it appears to us that it would be contrary to good morals to permit appellant in effect to shift its ground, after the injury and after it had been haled into court, by asserting that appellee had ventured upon the crossing without invitation and at his own risk. Not to refine too much, it seems to us not unreasonable that the company should be subjected in the circumstances to the consequences of having extended an invitation which had been acted on. In Indiana, etc., R. Co. v. Barnhart, 115 Ind. 399, 16 N. E. 121, this court said: “When a person has a license to go upon the grounds or inclosure of another, he takes the premises as he finds them, and accepts whatever peril he incurs in the use of such license. But when the owner or occupant, by enticement, allurement, or inducement, whether express or implied, causes another to come upon his land, he then assumes the obligation of providing for the safety and protection of the person so coming, and for any breach of duty in that respect such owner or occupant becomes liable for any injury which may result to the person so caused to come onto his lands. The enticement, allurment, or inducement, as the case may be, must be the equivalent of an express or implied invitation. Mere acquiescence in the use of one's land by another is not sufficient. Such implied invitation may be inferred from some act or line of conduct, or from some designation or dedication. This general doctrine was affirmed in the case of Railroad Co. v. Griffin, 100 Ind. 221, 50 Am. Rep. 783, and it is well supported by a long line of authorities. Sweeny v. Railroad Co., 10 Allen (Mass.) 368, 87 Am. Dec. 644; Smith v. Docks Co., L. R. 3 C. P. 326; Carleton v. Steel Co., 99 Mass. 216; Railroad Co. v. Grush, 67 Ill. 262, 16 Am. Rep. 618;Doss v. Railway, 21 Am. Rep. 371, 59 Mo. 27;Elliott v. Pray, 10 Allen (Mass.) 378, 87 Am. Dec. 653; Stratton v. Staples, 59 Me. 95; Railroad Co. v. Hanning, 15 Wall. (U. S.) 649, 21 L. Ed. 220;Bennett v. Railroad Co., 102 U. S. 577, 26 L. Ed. 235; Hayes v. Railway Co., 18 Reporter, 193. See Lary v. Railway, 78 Ind. 323, 41 Am. Rep. 572;Railroad v. Bingham, 29 Ohio St. 364; Railway v. Goldsmith, 47 Ind. 43;Hargreaves v. Deacon, 25 Mich. 1;Sweeny v. Railroad, 10 Allen (Mass.) 368, 87 Am. Dec. 644;Nicholson v. Railroad Co., 41 N. Y. 525;Durham v. Musselman, 2 Blackf. 96, 18 Am. Dec. 133; Hounsell v. Smyth, 97 E. C. L. 731; Gilles v. Railway Co., 59 Pa. 129, 98 Am. Dec. 317; Southcote v. Stanley, 1 Hurl. & N. 247; Bolch v. Smith, 7 Hurl. & N. 736; Lygo v. Newbold, 24 Eng. Law & Eq. 507; Burdick v. Cheadle, 26 Ohio St. 392, 20 Am. Rep. 767; Hardcastle v. Railroad Co., 4 Hurl. & N. 67.”

The case as pleaded contains some of the elements of a dedication, and, while we would not be understood...

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56 practice notes
  • Cleveland, C., C. & St. L. Ry. Co. v. Clark, No. 7,255.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 8, 1912
    ...136 Ind. 431, 34 N. E. 1113, 22 L. R. A. 198;Standard Oil Co. v. Helmick, 148 Ind. 457, 47 N. E. 14;Baltimore, etc., R. Co. v. Slaughter, 167 Ind. 330, 79 N. E. 186, 7 L. R. A. (N. S.) 597, 119 Am. St. Rep. 503;Brummit v. Furness, 1 Ind. App. 401, 27 N. E. 656, 50 Am. St. Rep. 215;Consolida......
  • Wabash R. Co. v. Beedle, No. 6,344.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 29, 1909
    ...v. McNabb, 7 Ind. App. 393, 34 N. E. 667;Steinke v. Bentley, 6 Ind. App. 663, 34 N. E. 97;Baltimore, etc., R. Co. v. Slaughter, 167 Ind. 330, 79 N. E. 186, 7 L. R. A. (N. S.) 597, 119 Am. St. Rep. 503;M. S. Huey Co. v. Johnston, 164 Ind. 489, 73 N. E. 996;Hartwell v. Peck, 163 Ind. 357, 71 ......
  • New York Cent. R. Co. v. Wyatt, No. 19398
    • United States
    • July 26, 1962
    ...mutual advantage must appear before an invitation can be implied. Baltimore, etc., R. Co. v. Slaughter, supra, [at page] 338 [of 167 Ind., 79 N.E. 186, 7 L.R.A. (N.S.) 597].' (our emphasis) In conclusion, the court in the Fleming case, supra, held that the railroad owed 'a duty of exercisin......
  • Boos v. State , No. 22,548.
    • United States
    • Indiana Supreme Court of Indiana
    • April 30, 1914
    ...must be reached by motion, owing to the fact that we have no special demurrer in our practice. Baltimore, etc., Co. v. Slaughter (1906) 167 Ind. 330, 79 N. E. 186, 7 L. R. A. (N. S.) 597, 119 Am. St. Rep. 503; Smith v. Freeman, supra; Graham v. Martin, 64 Ind. 567. The general demurrer at c......
  • Request a trial to view additional results
56 cases
  • Cleveland, C., C. & St. L. Ry. Co. v. Clark, No. 7,255.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 8, 1912
    ...136 Ind. 431, 34 N. E. 1113, 22 L. R. A. 198;Standard Oil Co. v. Helmick, 148 Ind. 457, 47 N. E. 14;Baltimore, etc., R. Co. v. Slaughter, 167 Ind. 330, 79 N. E. 186, 7 L. R. A. (N. S.) 597, 119 Am. St. Rep. 503;Brummit v. Furness, 1 Ind. App. 401, 27 N. E. 656, 50 Am. St. Rep. 215;Consolida......
  • Wabash R. Co. v. Beedle, No. 6,344.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 29, 1909
    ...v. McNabb, 7 Ind. App. 393, 34 N. E. 667;Steinke v. Bentley, 6 Ind. App. 663, 34 N. E. 97;Baltimore, etc., R. Co. v. Slaughter, 167 Ind. 330, 79 N. E. 186, 7 L. R. A. (N. S.) 597, 119 Am. St. Rep. 503;M. S. Huey Co. v. Johnston, 164 Ind. 489, 73 N. E. 996;Hartwell v. Peck, 163 Ind. 357, 71 ......
  • New York Cent. R. Co. v. Wyatt, No. 19398
    • United States
    • July 26, 1962
    ...mutual advantage must appear before an invitation can be implied. Baltimore, etc., R. Co. v. Slaughter, supra, [at page] 338 [of 167 Ind., 79 N.E. 186, 7 L.R.A. (N.S.) 597].' (our emphasis) In conclusion, the court in the Fleming case, supra, held that the railroad owed 'a duty of exercisin......
  • Boos v. State , No. 22,548.
    • United States
    • Indiana Supreme Court of Indiana
    • April 30, 1914
    ...must be reached by motion, owing to the fact that we have no special demurrer in our practice. Baltimore, etc., Co. v. Slaughter (1906) 167 Ind. 330, 79 N. E. 186, 7 L. R. A. (N. S.) 597, 119 Am. St. Rep. 503; Smith v. Freeman, supra; Graham v. Martin, 64 Ind. 567. The general demurrer at c......
  • Request a trial to view additional results

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