Citizens' Street Railroad Company v. Sutton

• Decision Date: 09 March 1897
• Docket Number: 17,655
• Citation: 46 N.E. 462,148 Ind. 169
• Parties: Citizens' Street Railroad Company et al. v. Sutton
• Court: Indiana Supreme Court

46 N.E. 462

148 Ind. 169

Citizens' Street Railroad Company et al. v. Sutton

No. 17,655

Supreme Court of Indiana

March 9, 1897

Rehearing Denied June 9, 1897, Reported at: 148 Ind. 169 at 175.

From the Marion Superior Court.

Affirmed.

W. H H. Miller, John B. Elam, Mason & Latta, J. E. Scott and J. B. Curtis, for appellants.

Daniel W. Howe and Miller & Barnett, for appellee.

OPINION

Jordan, C. J.

Appellee instituted this action against the appellants, the Citizens' Street Railroad Company and the city of Indinapolis, and recovered a judgment in the lower court for injuries sustained by him on one of the public streets of the city by reason of the alleged negligence of the appellants. The errors assigned are based upon the action of the lower court in overruling separate demurrers of appellants to the complaint, and in denying their separate motions for a new trial. The complaint after setting out several ordinances adopted by the city of Indianapolis, which provide in detail as to the manner of laying and maintaining street railroad tracks, and also requiring that the space between such tracks, and also to an extent two feet outside of each rail shall conform to the grade of the street, and further providing that the company operating the railroad shall be liable for damages resulting from its negligence, etc proceeds to charge that appellant, the street railroad company, under the laws of this State and the ordinances set out, operated and maintained upon South Meridian street of the city of Indianapolis, a street railroad track in the center of said street; that by the running of the cars of the said railroad company drawn by mules over and along said street, two deep ruts, in depth from eight to ten inches, had been worn in the space between the rails of said track and were separated by a high ridge of dirt in the middle of said space, and that neither the latter space nor the space to the extent of two feet outside of the rails and adjoining the same, conformed to the grade of the street; that from the condition of said tracks the street was rendered very unsafe and dangerous for travelers thereon in wagons and other vehicles to cross said tracks. It is further averred that the track on the street at the time of the accident of which plaintiff complains, and for six months prior thereto, was, and had been in said unsafe and dangerous condition, and that its said condition could easily have been discovered by the officers of said city having the supervision of its streets, and by said Citizens' Street Railroad Company, and was in fact well known to both of the defendants, but that each of them, nevertheless, wrongfully and negligently failed and refused to fill up said ruts or make the space between the rails of the track conform to the grade of said street. The complaint continuing charges as follows: "That on September 8, 1892, the plaintiff, who then resided a few miles distant from the city of Indianapolis, after having transacted the business in which he had been engaged in said city, was returning home, and his most direct and convenient route home, was by way of said South Meridian street along the east side of which he was driving in a two-horse wagon; that shortly before he reached the point where he received the injuries hereinafter mentioned, he discovered that a short distance ahead of him the space between said railroad track and the east side of said street was so blockaded by some building materials that he could not drive past the same on that side of the street; neither was the space between said track and the east side of said street wide enough to permit him to turn round and go back; and furthermore, the deep ruts hereinbefore mentioned and the unsafe and dangerous condition of said tracks extended for fully one-half mile north and south of the point where he then was; so that it became necessary for plaintiff to cross the tracks of said defendant, the Citizens' Street Railroad Company, at that point, which was about one square south of the intersection of said South Meridian and Morris streets; that he then and there attempted to drive across said track, looking and driving as carefully as he could, but in making said attempt, and without any fault or negligence whatever on his part, and solely by reason of the negligence of the defendants as aforesaid, the front wheels of his wagon dropped suddenly into said ruts and so caused him to lose his balance, whereby he fell from his wagon upon the ground, striking the same with great violence, thereby causing a compound fracture of the femur of his right leg, breaking the bones of his right knee and destroying the joint thereof, fracturing the skull, breaking the bones of his face, and greatly...