Evansville & T.H.R. Co. v. Carvener

• Decision Date: 30 December 1887
• Citation: 113 Ind. 51,14 N.E. 738
• Parties: Evansville & T. H. R. Co. v. Carvener.
• Court: Indiana Supreme Court

113 Ind. 51

14 N.E. 738

Evansville & T. H. R. Co.

v.Carvener.

Supreme Court of Indiana.

December 30, 1887.

Appeal from circuit court, Posey county; William F. Parrett, Judge.A. & J. E. Iglehart and Edwin Taylor, for appellant. Wm. P. Edson and F. D. Wimmer, for appellee.

Mitchell, C. J.

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 railway tracks, to its former state.

The complaint charges that the crossing was rendered difficult and dangerous on account of the railway 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 5, § 3903, Rev. St. 1881. The failure to observe this statutory duty was actionable negligence, in respect of any person who sustained injury thereby without fault. Railway 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. Railroad Co. v. City of Lawrenceburgh, 37 Ind. 489;Johnson v. Railway Co., 31 Minn. 283, 15 Amer. & Eng. R. Cas. 467, 17 N. W. Rep. 622. While the highway cannot 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, unless absolutely necessary. People v. Railroad Co., 67 Ill. 118;Roberts v. Railway 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 highwayinconvenient of passage at...