Greenawaldt v. Lake Shore & Michigan Southern Railway Company
| Decision Date | 07 April 1905 |
| Docket Number | 20,542 |
| Citation | 74 N.E. 1081,165 Ind. 219 |
| Court | Indiana Supreme Court |
| Parties | Greenawaldt v. Lake Shore & Michigan Southern Railway Company |
Rehearing Denied June 28, 1905.
From Lagrange Circuit Court; J. D. Ferrall, Judge.
Action by Mary E. Greenawaldt against the Lake Shore & Michigan Southern Railway Company. From a judgment for defendant plaintiff appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.
Reversed.
E. B Dunten, P. V. Hoffman and Dunten & McClaskey, for appellant.
Olds & Doughman, George C. Green, F. J. Jerome and John W. Hanan, for appellee.
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 cost was rendered against her, from which judgment she appeals.
It is alleged in the complaint that the defendant owns and operates a double-tracked railroad running generally east and west through Dekalb county, which, as it approaches the town of Butler, runs in a slightly northeast and southwest direction that it is twenty feet from the north end to the south end of the ties of the tracks; that near Butler there is what is known as Reynolds Crossing, made by the railroad intersecting an east-and-west highway at an angle of fourteen degrees; that 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 east 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; that these fences and the acuteness of the angle with which the railroad crosses the highway, cause the former so to encroach upon the latter that from the crossing for fifty feet eastward the highway available for travel is but sixteen feet wide, and for the next 100 feet eastward is but twenty feet wide, so, having approached nearer than one hundred and fifty 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; that the grade of the railroad at the corssing, and for a considerable distance to the east and west, is from one and a half to three 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; that about noon, 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, was traveling in a buggy westward on said highway to the town of Butler; that the day was cold, the ground covered with snow, and the wind was blowing briskly from the west; that a large...
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Greenawaldt v. Lake Shore & M.S. Ry. Co.
... ... To promote safety and expedition in the running of trains, the company had adopted and established the uniform custom of running all east-bound ... ...