Greenawaldt v. Lake Shore & M.S. Ry. Co.
| Decision Date | 07 April 1905 |
| Docket Number | No. 20,542.,20,542. |
| Citation | 165 Ind. 219,74 N.E. 1081 |
| Parties | GREENAWALDT v. LAKE SHORE & M. S. RY. CO. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
On petition for rehearing. Petition overruled, and the opinion in 73 N. E. 910, modified.
Appellant sues to recover damages for personal injuries alleged to have been received through the negligence of appellee. The court sustained a demurrer, for insufficiency of facts, to what is called in the record the third amended complaint. The plaintiff refused to amend, and judgment for costs was rendered against her, from which she appeals.
It is alleged in the complaint: That the defendant owns and operates a double-track railroad running generally east and west through De Kalb county, which, as it approaches the town of Butler, runs in a slightly northeast and southwest direction. That it is 20 feet from the north end to the south end of the ties of the tracks. Near Butler there is what is known as “Reynold's Crossing,” made by the railroad intersecting an east and west highway at an angle of 14 degrees. To promote safety and expedition in the running of trains, the company had adopted and established the uniform custom of running all east-bound trains on the north track, and all west-bound trains on the south track; all trains being run in such order, except in cases of wreck, blockade, or other emergency, which was very rare. That the custom had been so long established and unvaryingly observed that it became well known throughout the community. That beginning at the east cattle-guard fence, at a point 177 feet each of the crossing, and thence eastward, said east and west highway is fenced on the north side thereof, and on the south side a fence beginning 200 feet east of the crossing at a lane running south, continues west along the south line of the highway to a cattle-guard fence on the west of said crossing. These fences, and the acuteness of the angle with which the railroad crosses the highway, cause the former to so encroach upon the latter that from the crossing for 50 feet eastward the highway available for travel is but 16 feet wide, and for the next 100 feet eastward is but 20 feet wide. So, having approached nearer than 150 feet of the crossing, a traveler in a vehicle could not turn around and retreat from an approaching train, and must choose between the danger of collision with the train, or injury from a frightened horse. The grade of the railroad at the crossing and for a considerable distance to the east and west is from 1 1/2 to 3 feet higher than the highway, and at the crossing the tracks of the railroad are visible to the east for 1,500 feet, and to the west for 1,200 feet. On January 31, 1901, the plaintiff, who resided in the vicinity, and had often driven over the crossing, and was well acquainted with it, and with the defendant's custom of running its trains, but had no knowledge whatever of any deviation from such custom, about noon was traveling westward on said highway in a buggy to the town of Butler. The day was cold, the ground covered with snow, and the wind was blowing briskly from the west. A large number of telephone and telegraph wires stretched along both the highway and the railroad at the crossing made a loud, roaring sound, resembling the rumbling of an...
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