Evansville And Terre Haute Railroad Company v. Carvener
| Citation | 14 N.E. 738,113 Ind. 51 |
| Decision Date | 30 December 1887 |
| Docket Number | 13,021 |
| Parties | The Evansville and Terre Haute Railroad Company v. Carvener |
| Court | Supreme Court of Indiana |
From the Posey Circuit Court.
The judgment is affirmed with costs.
A Iglehart, J. E. Iglehart and E. Taylor, for appellant.
W. P Edson and F. D. Wimmer, for appellee.
Carvener sued the railroad company to recover the value of a horse, the death of which, he alleges, was caused by the negligent failure of the defendant company to restore a public highway, crossed by the railroad track, to its former state.
The complaint charges that the crossing was rendered difficult and dangerous on account of the railroad track being laid about nine inches above the surface of the highway, thus presenting a material obstruction to the passage of wagons and teams. It is alleged that, in attempting to cross the track with a loaded wagon and team, without fault on his part, the plaintiff's wagon violently encountered the obstruction, and the team was so strained, in pulling the loaded wagon over it, that one of the horses died from the effects of the injury.
The complaint states a good cause of action. The statute which conferred upon the railroad company the right to construct its track across the public highway, imposed upon it the duty of restoring the highway to its former state as nearly as possible. Subdivision fifth, section 3903, R. S. 1881. The failure to observe this statutory duty was actionable negligence in respect to any person who sustained injury thereby without fault. Louisville, etc., R. W. Co. v. Smith, 91 Ind. 119.
Leaving the highway in such a condition as to require the wheels of vehicles passing over the railroad track to be raised nine inches perpendicularly from the surface of the highway, in order to pass over the top of the rails, was prima facie a negligent interference with the free use thereof. Indianapolis, etc., R. R. Co. v. State, ex rel., 37 Ind. 489; Johnson v. St. Paul, etc., R. R. Co., 31 Minn. 283 (15 A. & E. R. R. Cases, 467, 17 N.W. 622).
While the highway can not be restored in all respects to its former condition, it must be so far restored as not to impair its usefulness more than the additional use of it for railroad purposes renders absolutely necessary. People v. Chicago, etc., R. R. Co., 67 Ill. 118; Roberts v. Chicago, etc., R. W. Co., 35 Wis. 679; State v. Railroad Co., 36 Ohio St. 434.
The complaint contains the averment that the injury occurred without the fault of the plaintiff. The specific facts stated do not overcome this averment so as to show that the plaintiff was guilty of contributory negligence.
It is contended next, that the evidence shows that the plaintiff had knowledge of the condition of the highway, and that he was hence guilty of contributory negligence in attempting to pass over the obstruction in question.
It is quite true that the plaintiff and others had passed over the place as it was left by the defendant, and knew of the obstruction, and that it made the highway inconvenient of passage at that point. The obstruction was not, however, of such a character as that an inference of law necessarily arises upon the evidence, that it presented a positively and unavoidably dangerous impediment to ordinary travel. The free use of the highway had been interfered with by the...
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