Fort Wayne and Wabash Valley Traction v. Roudebush
| Decision Date | 15 October 1909 |
| Docket Number | 21,215 |
| Citation | 89 N.E. 369,173 Ind. 57 |
| Parties | Fort Wayne and Wabash Valley Traction Company v. Roudebush, Administratrix |
| Court | Indiana Supreme Court |
Original Opinion of June 4, 1909, Reported at: 173 Ind. 57.
Counsel for appellant on petition for rehearing reassert the insufficiency of the complaint, and reargue other questions originally presented, considered and decided by the court. The complaint is not to be commended as a model pleading, but if all its allegations were true appellant would not only be guilty of gross negligence, but almost of a wilful disregard for the lives of its employes. It is earnestly insisted that appellant had a right to run an extra car over its road without regard to its usual custom, or the knowledge of employes on other cars, or the means of advising them, or the condition of the track, provided it used ordinary care in the premises. This contention may be conceded, but in this complaint it is made to appear, prima facie, that ordinary care for the safety of its operative men was not exercised. It is averred that appellant's officers and agents in charge of its road started a second car from LaFayette northward over a single track railway, knowing that the decedent's car coming south had the right of way and, in the natural course of events, would meet the north-bound car upon a dangerous curve, and cause a collision, but gave no order or direction to the motorman or conductor of the north-bound car to take the siding immediately south of the curve. Counsel argue that the charge that appellant did not take the particular precaution mentioned is not sufficient to show the absence of ordinary care and to establish negligence. The principle relied on is true as a general rule, but here it appears that the second car was sent out under conditions that would make a collision upon a dangerous curve almost inevitable.
It is inconceivable that proper management would permit the meeting of cars on a single track at such a point, and would not provide for their passing at a convenient siding. The south-bound car had the right of way, was not required to take a siding, and could not be expected to back up in case of a meeting between passing points. In the circumstances stated, it appears to us that the natural, ordinary and only reasonable provision to have been made for the passing of the cars was to direct the north-bound car to take the...
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