Cincinnati, W. & M. R. Co. v. Hiltzhauer

• Decision Date: 08 January 1885
• Docket Number: 11,668
• Citation: 99 Ind. 486
• Parties: Cincinnati, Wabash and Michigan Railway Company v. Hiltzhauer
• Court: Indiana Supreme Court

99 Ind. 486

Cincinnati, Wabash and Michigan Railway Company v. Hiltzhauer

No. 11,668

Supreme Court of Indiana

January 8, 1885

From the Grant Circuit Court.

C Cowgill, H. B. Shiveley and C. E. Cowgill, for appellant.

J. F McDowell and J. Brownlee, for appellee.

OPINION

Elliott J.

The complaint of the appellee, omitting the formal parts, is as follows: "The plaintiff, in the month of October, 1881 was the owner of one roan cow and one black cow and one white heifer, of the aggregate value of sixty-five dollars; and at the county of Grant and State of Indiana, about four miles north of the town of Marion, at a public crossing of a highway on defendant's line of railroad, in the month of October or November, 1881, while said company was operating, by its employees, a locomotive and train of cars passed over and upon the said cattle and killed them. Plaintiff avers that said defendant by its employees was running its train of cars at a fast rate of speed at the time said cattle were killed and at the crossing where they were killed, and while said defendant by its employees was approaching said crossing with its locomotive and train of cars, it did, by its employees, carelessly and negligently and wilfully neglect to sound the whistle attached to said locomotive at a distance of eighty to one hundred rods from said crossing, as was required by law, and that it further carelessly, negligently, and wilfully neglected to ring the bell on said locomotive until it passed over said crossing. Plaintiff avers that by the said negligent acts and carelessness of said defendant, by its employees, said cattle were killed, all of which killing was without any fault or negligence of plaintiff."

This complaint is justly subject to criticism, but, while we may agree with the counsel for appellant in their criticism upon its general frame and its phraseology, we can not agree with them in the assertion that it does not state facts sufficient to constitute a cause of action.

It is probably true, as asserted by counsel, that a railroad company is not guilty of negligence because it does not slacken the speed of its trains at highway crossings, or because it runs over them at a rapid rate of speed. Pierce R. R. 406. But granting this to be the law, it does not follow that the complaint is bad, for other acts of negligence are averred.

It is charged that the whistle was not sounded until the locomotive was nearer the crossing than eighty rods, and that the bell was not rung until the train had passed the crossing. Our statute requires that the whistle shall be sounded and the bell rung when the "engine is not less than eighty nor more than one hundred rods from such crossing." R. S. 1881, 4020. In omitting to do what the law enjoins the appellant was guilty of actionable negligence.

The statute provides that the company negligently omitting to give the prescribed signals shall be liable in damages to any person that "may be injured in property or person." R. S. 1881, sec. 4021. The effect of this statutory provision is to clothe one whose person or property is injured with a right of action in cases where there is a negligent failure to give the signals required. We do not think the right of action exists only where a reasoning being is injured, but do think that if the negligent omission to do what the law requires causes injury to animals, a right of action accrues in favor of the owner. We find nothing in Pierce on Railroads opposing this conclusion. There are statements on the pages referred to by counsel which, if detached from the language with which they are associated, might possibly be regarded as lending support to appellant's position, but when considered, as they must be, in connection with the language with which they are associated, they are very far from yielding that position any support. Pierce Railroads, 350, 351. We do find at another place in the same book a statement diametrically opposed to the views of counsel. Thus it reads: "The omission to give signals of warning which will alarm cattle is not in itself negligence, when they are not required by statute. But when they are so required the company is liable for injuries to cattle resulting from the omission." Pierce R. R. 408. This statement is supported by a strong array of authority, and is, we have no doubt, a correct expression of the law. The remark of the judge who wrote the opinion in Harty v. Central R. R. Co., 42 N.Y. 468, that "The sole object of this law, it seems to me, was to protect persons travelling upon the highway, at or near the crossing," must be construed in connection with the facts to...