Crum v. Conover

• Citation: 40 N.E. 644,14 Ind.App. 264
• Decision Date: 30 April 1895
• Docket Number: 1,520
• Parties: CRUM v. CONOVER ET AL
• Court: Indiana Appellate Court

40 N.E. 644

14 Ind.App. 264

CRUM v. CONOVER ET AL

No. 1,520

Court of Appeals of Indiana

April 30, 1895

Reported at: 14 Ind.App. 264 at 268.

From the Clark Circuit Court.

J. K Marsh and Burtt & Taggart, for appellant.

Voigt & Stotsenburg, for Conover.

OPINION

ROSS C. J.

The appellee Miles T. Conover, sued the appellant Andrew J. Crum and the appellee the Ohio and Mississippi Railway Company, to recover the value of stock killed on said company's railroad, which had entered on its track through a private way, maintained by appellant, but across which he failed to build and maintain and keep closed gates, pursuant to the provisions of the act approved April 8, 1885. (Sections 5320, 5322, R. S. 1894).

Section 1 of that act (section 5320, supra), provides that the owners of tracts of land separated by the right of way of a railroad may, if such right of way was acquired by condemnation and appropriation, construct and maintain private crossings across such right of way from one of such tracts of land to the other.

Section 2 of the act (section 5321), provides that if the company's right of way is fenced at a point where such owner constructs his crossing, he shall "erect and maintain substantial gates in the line of such fence or fences." And section 3 of the act (section 5322, supra), provides that if animals get upon the railroad track through such gates, and are killed or injured by the railroad cars or locomotives, the railroad company shall not be liable therefor.

The first specification of error questions the action of the court in overruling appellant's demurrer to the complaint.

The material allegations of the complaint are, that on the 26th day of August, 1892, and for a long time prior thereto, the appellant Crum was the owner of a tract of land in Clark county, Indiana, which was separated by the right of way of the appellee the Ohio and Mississippi Railway Company, upon which right of way the railroad company operated its railroad, and which right of way was at that time fenced in, and the fences maintained by said company. That during that time appellant Crum had a private "wagon and drive way over and across said right-of-way," "leading from that part of said tract north of said right-of-way to that part thereof lying south of the same, and thence to a public highway." It is then averred that Crum, "during all that time failed and neglected to erect and maintain substantial gates" across such wagon and drive-way in the line of the railroad fences, and left such wagon and drive-way open from the public highway to the track of said railroad; that on the 26th day of August, 1892, certain cattle, belonging to appellee Conover, which he kept in an "enclosure which was then and there enclosed by a lawful fence," escaped therefrom "onto said highway" without any fault or negligence on his part, and without his knowledge or consent, and by reason of appellant's negligence in failing to keep such private way fenced, said stock entered from the highway into said private way and from there, without any negligence on appellee Conover's part, went upon the railroad track of the appellee company, and were run upon and over, and killed by its locomotive and cars.

It is clear that the facts alleged in the complaint do not state a cause of action against the appellee the Ohio and Mississippi Railway Company. Pennsylvania Co. v. Spaulding, 112 Ind. 47, 13 N.E. 268; Hunt v. Lake Shore, etc., R. W. Co., 112 Ind. 69, 13 N.E. 263; Louisville, etc., R. W. Co. v. Etzler, 119 Ind. 39, 21 N.E. 466.

When the owner of lands intersected by a railroad makes a private crossing over the right of way of such railroad, the law imposes upon him the duty of erecting gates across the same and of maintaining and keeping such gates closed, section 5321, supra. As...