Cincinnati, Hamilton And Indianapolis Railroad Company v. Claire
| Decision Date | 29 March 1893 |
| Docket Number | 812 |
| Parties | CINCINNATI, HAMILTON AND INDIANAPOLIS RAILROAD COMPANY ET AL. v. CLAIRE |
| Court | Indiana Appellate Court |
From the Marion Superior Court.
Judgment affirmed.
A. C Harris, R. D. Marshall and L. O Bailey, for appellants.
V Carter, for appellee.
This was an action by the appellee against the Cincinnati Hamilton & Indianapolis Railroad Company and the city of Indianapolis for personal injuries caused by the alleged defective condition of a street crossing in the city of Indianapolis, at a point where said street crossed the railroad track of said company. The complaint charges that for more than ten years prior to the 17th day of December, 1887, the said railroad track was so located as to intersect and cross the said street, known as East street; that before the year 1885 the railroad track had crossed said street, at the point of intersection, on the same level, or grade, as the grade of said street on both sides of said track; that in 1885 the city of Indianapolis passed an ordinance empowering and requiring the said railroad company to raise its track at said crossing; that in said year 1885 the railroad company, pursuant to the direction on said ordinance, proceeded to, and did, raise its said track at such crossing so that the level and grade thereof was three feet higher than the grade of said East street immediately south of said track; that on the sidewalk on the east side of said street, by the raising of the track, there was made a difference of three feet in the level of the sidewalk, at the point where the same crossed the railroad track, and the level sidewalk immediately south of the track; "that to remedy said difference in the grade of said sidewalk, the said defendants put across said sidewalk, immediately south of said track, three wooden steps, each twelve inches in height and eight inches in width; that no railing or guard of any kind was placed on either side of said steps; that at said point where said steps were placed there is, and was, no street lamp, or other light, so as to reveal to passers-by the existence and location of the said steps, but that at night it is, and was, very dark at said point, and that said steps are, and ever since they were put in, to wit, for more than one year prior to said 17th day of December, 1887, have been, very unsafe and dangerous to pedestrians passing on said walk at night; that the said defendants have had full knowledge of the said unsafe and dangerous condition of the said sidewalk ever since the said steps were placed thereon, to wit, for more than one year, and have negligently and carelessly allowed the same to remain in said condition until since the happening of the injuries hereinafter complained of, when the said defendant, The City of Indianapolis, has placed railings at the end of said step." Plaintiff further averred that on the night of December 17th, 1887, she was passing along said East street, going south, as she lawfully might, returning from market, without any knowledge whatever of the change in the grade of said sidewalk from its former level, and without any knowledge of the said steps, and the unsafe and dangerous condition of the said sidewalk at said point, and with due and proper care, and without fault or negligence on her part, but solely because of the defective and dangerous condition of said sidewalk, she stepped off and fell from the higher level thereof to the lower level thereof, and was thereby severely and permanently injured, wounded, and bruised on the body, face and head, and, also, injured internally. For these injuries she demands judgment for $ 2,000.
Both defendants join in the appeal, and separately assign errors, but the city of Indianapolis has filed no brief, and the errors assigned by it must be regarded as waived. As to said city the judgment is, therefore, affirmed. The railroad company, for the first time in this court, questions the sufficiency of the complaint by assignment of error, and we proceed to determine its sufficiency. Does the complaint disclose a cause of action against the railroad company?
The complaint seems to proceed upon the theory of negligence in leaving the sidewalk at the crossing in a defective condition. We can not concur with appellant's counsel that the negligence charged in the complaint is the building of the steps. The several averments of the complaint must be construed together. The facts of the raising of the track, the resulting embankment, the building of the steps, the absence of the railing and light and other protection, are stated in narrative form; then follows the charge of knowledge of the defect on the part of the defendants, and the whole statement is followed by the averment that said defendants have negligently and carelessly allowed the sidewalk to remain in such defective condition until the occurrence of the injury.
It is immaterial whether or not it was the duty of the railroad company to keep a light at the crossing. If we grant that this duty devolved upon the city and not upon the company, or that it did not devolve upon any one, it still remains true that when the company undertook to restore the walk, it did so with reference to the fact that the place was not lighted at night. As we take it the negligence charged is not the affirmative act of placing the steps there, but the failure to sufficiently restore the sidewalk, the placing of the steps being only a partial restoration.
By section 3903, R.S. 1881, railroad corporations are given the power to construct their tracks across or over roads or public highways, so as not to interfere with the free use of the same, in such manner as to afford security for life and property, but it is the duty of the corporation to restore the road or highway so intersected to its former state, or in a sufficient manner not to unnecessarily impair its usefulness or injure its franchises.
When the railroad company was empowered and ordered by the city ordinance to raise its track to the level of the grade, it not only had the right, but it became its duty to do so, but with the exercise of this privilege, and the discharge of this duty, it assumed an additional obligation to the public, and that was to restore the sidewalk to its former condition, so far as it was able to do so by the exercise of reasonable care and diligence, and failing to do this, it was guilty of maintaining a nuisance, and liable to any one who, by reason thereof, sustained an injury. Evansville, etc., R. R. Co. v. Crist, 116 Ind. 446, 19 N.E. 310.
In the case just cited it was said: ...
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