Budkiewicz v. Elgin, J. & E. Ry. Co.

• Decision Date: 10 June 1958
• Docket Number: No. 29562,29562
• Citation: 238 Ind. 535,150 N.E.2d 897
• Parties: John BUDKIEWICZ, Appellant, v. ELGIN, JOLIET & EASTERN RAILWAY COMPANY, a corporation, Appellee.
• Court: Indiana Supreme Court

Page 897

150 N.E.2d 897

238 Ind. 535

John BUDKIEWICZ, Appellant, v. ELGIN, JOLIET & EASTERN RAILWAY COMPANY, a corporation, Appellee.

No. 29562.

Supreme Court of Indiana.

June 10, 1958.

Jay E. Darlington, Hammond, for appellant.

Glenn D. Peters and Peters, Highland & McHie, Hammond, and Harlan L. Hackbert, Chicago, Ill., Stevenson, Conaghan, Velde & Hackbert, Chicago, of counsel, for appellee.

EMMERT, Judge.

This appeal is here by reason of four judges of the Appellate Court failing to concur. Section 4-209, Burns' 1946 Replacement. It is from a judgment entered for appellee because appellant refused to amend his complaint after a demurrer for want of facts had been sustained thereto.

The complaint is for personal injuries sustained by appellant when his automobile collided with a freight train operated by appellee at a place where the railroad crossed Indiana Highway No. 149 at grade. The crossing was unlighted, not protected by gates, flasher lights or any other mechanical warning device, but there was a cross arm sign at the crossing. Rhetorical paragraph 4 of the complaint charged:

'4. On October 20, 1953, in the evening after dark, plaintiff was returning home from work, driving his 1951 Pontiac automobile. He was going north on said Highway 149, approaching said crossing from the south. His automobile collided with one of defendant's cars standing on this crossing. This collision was a direct and proximate result of defendant's negligence (that is to say, the failure of its said employees to use that degree of care which an ordinary prudent person would use under like circumstances) in the following respects:

'(a) Defendant had created a situation at this crossing at that particular time which in fact made the crossing extra hazardous at that time by giving a false and deceptive appearance of safety, which was likely to and did deceive and entrap an approaching motorist using ordinary care such as plaintiff. More particularly; it was a dark night. This was a two-lane black top highway. It had recently been covered with a fresh coating of blacktop. Defendant placed a black tank car across this highway at this crossing. The nature of the tank car was such that its black tank body was suspended several feet above the surface of the highway at the crossing, and there was considerable open space beneath and at the ends of the tank. This, in conjunction with the black top highway, created a false appearance and illusion to the approaching motorist in plaintiff's situation that the crossing was open and that there was only a black highway extending ahead of him across and beyond the crossing. In this situation which in fact existed at this crossing that night, a person using ordinary care in the position of defendant's train crew would have known that motorists using ordinary care such as plaintiff were in danger of being deceived and entrapped into colliding with this tank car, and would have used care to prevent this deceptive situation, either by not placing this particular black car in this position relative to the highway, or by placing some kind of temporary warning at the crossing by means of a light or crew member, or any other means sufficient to warn the motorist of this hidden danger confronting him. This train crew then and there knew, or in the exercise of ordinary care should have known, all the facts above set forth in this paragraph, but nevertheless they neglected and failed to do anything to warn plaintiff of this particular peril that night. As plaintiff approached this crossing that night, he had his car equipped with good and adequate headlights and brakes, he was alert and keeping a look-out and was using ordinary care for his own safety. But nevertheless, by reason of the aforesaid situation and said negligence of the defendant, he was unable to see this tank car in time to avoid colliding with it, and was caused to collide with it.'

The complaint is hardly to be commended as a model of succinct pleading of facts under the Code, but on the other hand the appellee did not file any motion to require it to be made more specific. If such a motion had been filed and overruled and then followed by a demurrer for want of facts, the sufficiency of the complaint would be determined from the facts stated in the complaint. Neal v. Baker, 1926, 198 Ind. 393, 400, 153 N.E. 768; Enterprise Printing & Pub. Co. v. Craig, 1924, 195 Ind. 302, 306, 144 N.E. 542, 145 N.E. 309;

Terre Haute, I. & E. Traction Co. v. Phillips, 1921, 191 Ind. 374, 380, 381, 132 N.E. 740. ¹

The rule is well settled in this state that where there has been no motion to require the complaint be made more specific, and its sufficiency is attacked by a demurrer, the complaint is liberally construed to sustain its validity. Lincoln Operating Co. v. Gillis, 1953, 232 Ind. 551, 558, 114 N.E.2d 873; Rochester Bridge Co. v. McNeill, 1919, 188 Ind. 432, 439, 122 N.E. 662. ²

The memorandum to the demurrer alleged that the complaint failed to charge actionable negligence. Actionable negligence has three essential elements: (1) a duty imposed by law to do or not to do a certain act; (2) a violation of that duty by an act or omission to act which constitutes a breach of that duty; and (3) injury proximately caused by such breach of duty. Terre Haute, I. & E. Traction Co. v. Phillips, 1921, 191 Ind. 374, 382, 132 N.E. 740, supra; Elder v. Rutledge, 1940, 217 Ind. 459, 464, 27 N.E.2d 358; Indianapolis Abattoir Co. v. Neidlinger, 1910, 174 Ind. 400, 403, 92 N.E. 169. Section 10-3904, Burns' 1956 Replacement, creates a duty on a railroad not to permit a freight train to remain standing across a public highway. ³ In view of the rule that we construe a complaint to sustain it, we must hold that it charged more than a momentary stopping, or blocking of the highway for a reasonable time. The statute was enacted for the benefit of the public using the highways, not only to keep traffic moving, but to protect travelers from this kind of an obstruction in the highway. See Central Indiana R. Co. v. Wishard, 1917, 186 Ind. 262, 272, 114 N.E. 970. A violation of this statute is negligence per se. A plaintiff may be guilty of contributory negligence in colliding with such an obstruction, but that is another matter to be considered later. The complaint charged facts which, as against a demurrer, showed a violation of this statute, and it was not necessary to name the statute breached, or charge the omissions in the exact language of the statute. 'We take judicial notice of our statutes. The complaint here alleged facts which were a breach of the duties put upon appellant by the statute. This was a sufficient allegation of negligent conduct. Pennsylvania Co. v. Fertig, 1904, 34 Ind.App. 459, 70 N.E. 834, supra; 45 C.J. 1092; 65 C.J.S. Negligence § 187, p. 886. The facts constituting the breach of the statute were specifically alleged and so certain that the nature of the charge was apparent.' Corey v. Smith, 1954, 233 Ind. 452, 456, 120 N.E.2d 410, 412. When the cause is tried, the evidence may show that the appellee did not violate § 10-3904, Burns' 1956 Replacement, but we are not at liberty to hold this now as a matter of law on the complaint now before us.

The memorandum to the demurrer also charged that it affirmatively appeared from the complaint that the plaintiff was guilty of contributory negligence. Freedom from contributory negligence need not be alleged in a complaint, for contributory negligence is a matter of defense. Section 2-1025, Burns' 1946 Replacement. Contributory negligence must affirmatively appear from the face of the complaint as a matter of law before a demurrer may be sustained for that cause. Lindley v. Sink, 1940, 218 Ind. 1, 30 N.E.2d 456, 2 A.L.R.2d 772; Cleveland, C., C. & St. L. R. Co. v. Markle, 1918, 187 Ind. 553, 119 N.E. 371; Chicago, T. H. & S. E. R. Co. v. Barnes, 1918, 68 Ind.App. 354, 358, 119 N.E. 26; Cole v. Searfoss, 1912, 49 Ind.App. 334, 339, 97 N.E. 345. We fail to find the complaint affirmatively shows appellant was guilty of contributory negligence.

Until appellant had notice to the contrary, he had the right to assume that the appellee would use due care in its use of the crossing. Elgin Dairy Co. v. Shepherd, 1915, 183 Ind. 466, 474, 108 N.E. 234, 109 N.E. 353. The complaint charged the night was 'dark.' To sustain the complaint, we have the right to infer visibility was very limited. Since Opple v. Ray, 1935, 208 Ind. 450, 459, 195 N.E. 81, there is no absolute rule that the driver of a car is bound to see every object of danger in or on the highway at night. In view of the rule that the driver may assume others will use due care until he has notice to the contrary, he is not bound as a matter of law to drive at such reduced speed that at all times he could stop within his clear view ahead. If that were the rule, every driver at night would be guilty of negligence. The complaint averred plaintiff 'had his car equipped with good and adequate headlights and brakes, he was alert and keeping a look-out and was using ordinary care for his own safety.' The crossing was unlighted, without automatic signals, and the tank car was black and stopped across a black top highway. On this state of the record we can not hold as a matter of law that he was guilty of contributory negligence.

This is not the case where a train had lawfully entered upon a crossing, and was proceeding to move the remaining cars across when a traveler ran into the train. In such a case, the railroad has the legal right to complete the crossing, and breaches no legal duty owed the traveler; therefore, it is not guilty of any negligence. This was the holding in New York Central R. Co. v. Casey, 1938, 214 Ind. 464, 14 N.E.2d 714.

It would unduly extend this opinion to give a full analysis of the cases relied on by appellee to sustain the judgment, but we do not feel they are conclusive on the issues to be decided in the...