Cleveland, C., C. & St. L. Ry. Co. v. Clark
| Decision Date | 08 March 1912 |
| Docket Number | No. 7,255.,7,255. |
| Parties | CLEVELAND, C., C. & ST. L. RY. CO. et al. v. CLARK. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Clay County; John M. Rawley, Judge.
Action by William P. Clark, as administrator, etc., against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.George A. Knight, Sullivan & Knight, L. J. Hackney, Frank L. Littleton, A. J. Kelley, Louis D. Leveque, and A. W. Knight, for appellants. S. M. McGregor and S. A. Hays, for appellee.
This action was brought by appellee to recover damages against the appellants and the Guilfoil Contracting Company on account of the alleged negligent killing of appellee's decedent, Maggie Clark, on November 1, 1908. The complaint is in two paragraphs, to each of which a demurrer was overruled. The defendants filed separate answers in general denial, and the issues thus formed were tried by a jury, which returned a verdict in favor of appellee and against the appellants and in favor of the defendant Guilfoil Contracting Company. This appeal is taken from a judgment rendered on this verdict.
The complaint sets forth that the main line of the Big Four Railway Company runs east and west through Clay county, Ind., and crosses a highway near the town of Perth in Clay county, known as the Caseyville and Perth gravel road; that said railway company had employed appellant, the Wabash Construction Company, and the Guilfoil Contracting Company, to construct two additional sets of tracks paralleling the main line, and located immediately to the south of the main line, between certain points along the road; that these new sets of tracks had been practically completed at the time of the accident complained of at and across the highway above referred to; that appellee's decedent, Maggie Clark, and her sister-in-law, were driving a horse, hitched to a buggy, towards the north, and along said highway, and were in the act of crossing the tracks when the conveyance in which they were riding was struck by a train of flat cars, which was being backed by an engine towards the east over the middle or second set of tracks by the Guilfoil Contracting Company and the Wabash Construction Company, and that in consequence thereof decedent was thrown out of the buggy upon the track, and was run over by the train and killed. The theory of the complaint is that the accident was caused by the combined negligence of the railway company and the two construction companies.
For the purpose of charging negligence against the railway company, it is alleged, in substance, in the first paragraph of complaint, that at the place where the railway tracks crossed said highway the two tracks in process of construction were south of the main track of the railway, parallel therewith, and about eight feet apart, the nearest being about eight feet from the main track; that the two tracks in process of construction were on the same level and on a grade about five feet high, while the grade of the main track at that point was about two feet above the grade of the two tracks immediately south of it; that the highway described had been in existence for many years, and that it was the duty of the defendant railway company in constructing its railway tracks across such highway to do so in such a manner as to afford security for life and property, and to restore and maintain said highway at the place where it intersects and crosses its right of way and tracks in such a way as to make it suitable and safe for the traveling public, and so as not unnecessarily to impair its usefulness. It is further averred that such defendant failed to perform its duty in this respect by negligently suffering the highway crossing at the place described to get out of repair and become unsafe and dangerous for travel; that said highway crossing was permitted to be torn and broken up so as to leave the same with uneven surfaces, full of holes, and having steep grades and embankments thrown upon and across the same; that the crossing of the main line was uneven, rough, and unsecure, the planks thereon being placed and maintained so far apart as to render it unsafe for horses and vehicles to cross on account of the danger of horses becoming fastened and held in the space between said planks and the rails of said track; that the condition of the crossing as described existed on the day on which the injury occurred and for six months prior thereto; and that the defendant railway company knew of such condition or might have known of it by the exercise of reasonable care.
The first paragraph of complaint further avers facts showing that plaintiff's decedent was riding in a buggy north on said highway at about 6 o'clock on the evening of November 1, 1906, and that the person with whom she was riding started to cross the tracks in process of construction and the main track of the defendant railway company, and that, when she was crossing the second or middle track, a train of fiat cars operated by the construction company was negligently run toward and against the buggy causing the death of plaintiff's decedent, that the driver of the buggy and decedent observed the approach of the train and endeavored to escape from the dangerous situation, but that by reason of the defective and dangerous condition of the crossing described in the complaint they were unable to urge their horse up the steep and rough incline over the main track, and were also unable to back the horse off of the track or turn it aside in such a way as to avoid the collision, and that, if the said crossing had been maintained in a proper and suitable condition for travel, the driver of the buggy would have been able to have urged the horse forward across the track and avoided the injury.
The second paragraph contains substantially all of the allegations of the first, and, in addition thereto, it avers that at the time the conveyance was crossing the middle track one of the horse's feet became fastened in the defective crossing, and that this caused the horse to check its speed and stop, for which reason they were unable to cross the track in time to avoid the injury.
A demurrer filed by the railway company was overruled, and an exception taken by said defendant, and this presents the first error relied on for reversal.
[1] The statute imposes upon the railway companies the duty of restoring and maintaining the highway crossings in such a way as to be reasonably safe for travel, and a failure to discharge this duty is negligence. Burns' Ann. Stat. 1908, § 5195; Louisville, etc., R. Co. v. Smith, 91 Ind. 119;Wabash R. Co. v. De Hart, 32 Ind. App. 62, 65 N. E. 192.
[2] This duty cannot be delegated to others so as to relieve the company from liability in case of its breach, and therefore, if the independent contractors to whom the defendant railway company let the work of constructing its tracks negligently caused or permitted the crossing to become unsafe for travel, and an injury resulted as the direct and proximate effect of such negligence, the defendant railway company is liable. S. I. R. Co. v. McCarrell, 163 Ind. 460, 71 N. E. 156.
[3] It is insistently urged in behalf of the appellant railway company that the complaint is insufficient as against it for the reason that the facts averred fail to show that the defective condition of the highway crossing was the proximate cause of the train colliding with the buggy, and causing the injury described in the complaint. If the negligence of the defendant railway company in respect to allowing the crossing to become defective was one of the causes which concurred in producing the injury, it will not be relieved from liability because its negligence was not the sole cause or because the negligence of another may have likewise concurred in producing such injury Board of Commissioners v. Mutchler, 137 Ind. 140, 36 N. E. 534;Cleveland, etc., R. Co. v. Wynant, 134 Ind. 681, 34 N. E. 569;Board of Commissioners v. Sisson, 2 Ind. App. 311, 28 N. E. 374.
[4] The collision was caused by the train passing over the crossing while the buggy was on the track. The passing of the train may have been due to the negligence of the employés of the construction company and the defect in the road could have nothing to do with that; but the question remains, Did the defect in the road cause the buggy to be on the track at the time the train passed? The buggy was on the track because it had proceeded thus far, and failed to get beyond the track when the train passed. The defect in the track had nothing to do with causing the driver of the buggy to approach and enter upon the track. That action was caused, according to the averments of the complaint, by the failure of the servants of the construction company to give a signal indicating the approach of the train or to display a warning light. But what prevented the buggy from safely passing over the track before the train reached the crossing? According to the averments of the complaint, the defect in the highway prevented the buggy and its occupants from safely passing beyond the crossing before the arrival of the train, and thus caused the buggy to be on the crossing at the time the train passed over it. Had it not been for the defects in the crossing, the accident would not have happened. The negligence of the defendant railway company was, therefore, one of the concurring causes which produced the injury, and without which the accident would not have occurred; and it will be treated as one of the proximate causes, unless an independent agency has intervened in such a way as to break the chain of causation and to become the sole proximate cause.
In this case, according to the averments of the complaint, an independent agency operated by responsible agents intervened between the negligence of the railway company and the injury to plaintiff's...
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