Cannon v. Cleveland, Cincinnati, Chicago And St. Louis Railway Co.

• Decision Date: 26 November 1901
• Docket Number: 19,499
• Parties: Cannon v. Cleveland, Cincinnati, Chicago and St. Louis Railway Company
• Court: Indiana Supreme Court

62 N.E. 8

157 Ind. 682

Cannon v. Cleveland, Cincinnati, Chicago and St. Louis Railway Company

No. 19,499

Supreme Court of Indiana

November 26, 1901

Rehearing Denied Feb. 27, 1902.

From Floyd Circuit Court; W. C. Utz, Judge.

Action by Mamie G. Cannon against the Cleveland, etc., R. Co. From a judgment for defendant, plaintiff appeals.

Affirmed.

E. B Stotsenburg, J. H. Weathers, G. W. Galvin and W. A. Reading for appellant.

J. T. Dye, L. J. Hackney and M. Z. Stannard, for appellee.

Baker, J. Dowling, J., did not participate.

OPINION

Baker, J.

A demurrer for want of facts was sustained to appellant's complaint, in which she demanded judgment for $ 10,000 for personal injuries. She refused to plead further and judgment for appellee was entered. The ruling on the demurrer is assigned as error.

The material parts of the complaint are these: "That on March 21, 1896, the defendant was, and for more than six months previous thereto had been, engaged in operating a railroad in and through Delaware county, Indiana, with railroad tracks upon and over which locomotives and cars were run and propelled by steam; that the railroad passed through the city of Muncie, in Delaware county, and was constructed and operated in and through a thickly settled part of said city, where numerous foot-passengers were compelled to walk on, along, over and across said railroad tracks; that for the convenience of said railroad company and to enable it better to carry on its business, it had constructed its said railroad, on, over and across certain lots in said city of Muncie, owned by said defendant, and had constructed an open roadway five feet in width extending from Mulberry street to Walnut street; that, although the said strip of land so opened and used by said defendant was the private property of said company, yet with knowledge and consent of defendant, the same was, and for more than six months previous to the happening of the grievances hereinafter mentioned had been, continually used by the public, in common with said defendant, as a highway for foot-passengers, and at all hours of the day, the said way was so used; that on March 21, 1896, the plaintiff was carefully and rightfully passing on, over and across said roadway to the place where she was employed; that before entering upon said strip of ground she looked and listened in both directions but did not and could not hear or see any locomotive or car upon said strip or approaching the same; that after said plaintiff entered upon said strip and continually while she was traveling thereon, until the time of the grievances hereinafter mentioned, she looked and listened in both directions for the approach of a train, but by reason of the curve in the track of said railroad she could not hear or see any locomotive upon said strip or approaching the same; that while said plaintiff was then and there proceeding along said way in a careful manner, the defendant so negligently operated its road that she was wrongfully and negligently run against and permanently injured; that no bell was rung, no whistle was blown, nor was any warning of any kind given of the approach of said locomotive, nor was any watchman, gate, fence or barrier of any kind on, upon or across said strip of ground to notify persons using the same of the approach of a locomotive or train of cars; and that said locomotive approached said plaintiff from behind and going in the same direction she was, so quietly and so quickly that she had no knowledge of its approach until she was struck by it and knocked down; and plaintiff says that said accident and injury were caused solely by the wrongful negligence of the defendant and without any fault on the part of the plaintiff."

It appears that the alleged "highway for foot-passengers" was upon appellee's premises and extended longitudinally along and upon the tracks from one street to another. It was constructed by appellee for its own purposes and convenience. The public, in common with appellee's servants, used it as a footway. Appellee's servants presumably used it in the performance of their duties. The public used it for their own convenience as a short cut between streets. The way was used by the public with appellee's knowledge. The "consent", averred in the complaint, taking the intendments most strongly against the pleader, must be held to be only that consent which is implied from the public's use without appellee's express objection after knowledge of the use,--because no broader "consent" is directly alleged. Appellant did not go upon the premises to transact any business with appellee. She went purely for her own convenience, without invitation or inducement from appellee. There is no averment that the engineer saw appellant and thereafter negligently ran the engine upon her. The right to recover is predicated upon appellee's failure to have watchmen and barricades and to blow whistles and ring bells to keep appellant out of danger, without knowing that she was on the premises.

The basis of the action is negligence. It was therefore incumbent upon appellant to show that appellee owed her the duty to exercise the particular care the omission of which is alleged to have been the direct cause of the injury. Do the facts make out such a case?

It is not pretended that appellee expressly dedicated this longitudinal strip of its tracks to the public for a highway. The public's user of it was neither exclusive nor adverse; and, no matter how long continued, would not prove either an implied dedication or a prescriptive right. Baltimore, etc., R. Co. v. City of Seymour, 154 Ind. 17, 55 N.E. 953. The first stranger took upon himself the risk of all injuries short of those wilfully inflicted. So did the thousandth stranger, unless it be held that appellee, although there was not the slightest impairment of its title and right of possession, was compelled to treat its own private land as a public highway where it was not. The first stranger did not have permission to travel along the tracks; the thousandth did have. But permission to do what? To do exactly what the first...