"1. That the Indiana, Bloomington and Western
Railway Company is a corporation which, on and about the 12th
day of April, 1883, was the lessee and had control of the
line of railway built by the Indianapolis, Decatur and
Springfield Railway Company, and extending from a place where
said line of railway crosses the White river in the western
portion of the city of Indianapolis, in an easterly and
southeasterly direction, past and just south of a pork house
owned by Kingan & Company, Limited. That said Indiana
Bloomington and Western Railway Company came into possession
of said line of railway, as such lessee, on and about the 1st
of January, 1882, and has controlled the same ever since.
"2.
That the White River Railroad Company is a corporation owning
and controlling two lines of railway, which, commencing in
the private grounds of Kingan & Company, Limited, within said
city of Indianapolis, run almost parallel with each other in
a south and southeasterly direction, in their course were
crossed by the before mentioned line of railway leased and
controlled by the Indiana, Bloomington and Western Railway
Company; said place of crossing being situated a little east
of south of the place where said parallel tracks run through
the gate at the south of the main building of said pork house
owned by Kingan & Company, Limited.
"3.
That the easternmost of said lines of railway belonging to
the White River Railroad Company is commonly known as the
salt track or switch; that the westernmost of said tracks or
switches is commonly known as the house track.
"4.
That the place where said salt and house tracks cross and
intersect the line of railway leased and controlled by the
Indiana, Bloomington and Western Railway Company, is about
thirty-five or forty feet south of the gate at the south
entrance to the grounds of Kingan & Company, Limited.
"5.
That the crossing at the point where said salt track intersects the line of the Indiana, Bloomington and
Western Railway Company is what is known as an Elliott
crossing; and said lines of railway do not intersect each
other at right angles, but at such an angle so that the north
rail of the Indiana, Bloomington and Western Railway
Company's line of railway, and the west rail of the salt
track make an angle where they come together of twenty-five
degrees and forty-one minutes.
"6.
That the rails of said crossing, including the guard-rails,
are straight, and said salt track is straight north of said
crossing for a distance of about ten feet, and said salt
track is straight south of said crossing for a distance of
from ten to fourteen feet.
"7.
That said salt track, commencing about ten feet north of said
crossing, curves to the east, and said salt track, commencing
from ten to fourteen feet south of said crossing, curves to
the east and north. That the curve south of said crossing is
greater and sharper than the curve north of said crossing.
"8.
That said railway crossing is composed of the main rails of
said two lines of railway, and guard-rails running parallel
thereto and about two and one-half inches from the said main
rails. That said guard-rails extend all the distance between
the main rails of the Indiana, Bloomington and Western
Railway Company's track in a northwesterly and
southeasterly direction, and also for a distance of from ten
to fourteen feet south of said crossing and for a distance of
from ten to fourteen feet north of said crossing.
"9.
That the point where the main and guard-rails of said railway
companies crossed each other is commonly known as the point
of bisection and sometimes as the throat of the frog. That
there were four of such points of bisection in this crossing,
and were designated as the southwest, the northwest,
northeast and the southeast frogs or points of bisection,
respectively.
"10.
That at these points of bisection the main rails of said two lines of railway were fastened and bolted
together through fish plates, angle irons, and filling
between the main and guard-rails.
"11.
That the southwest and the northwest points of bisection were
loose, some of the bolts which held them together being gone
or broken, and said points of bisection having, when cars
passed over them, an up and down motion; that the east
guard-rail of the salt track was also loose.
"12.
That the southwest and the northwest points of bisection, and
the east guard-rail before mentioned, were so loose and
insecure as to be unsafe for the use to which said crossing
was put.
"13.
That at the northwest and southwest points of bisection the
main and guard-rails of both the defendants in this case came
together, and the rails and guard-rails at said points
belonging to and controlled by said defendants, respectively,
were loose and in an unsafe condition as aforesaid.
"14.
That, on the 12th day of April, 1883, both of said
defendants, by the exercise of reasonable diligence, could
have known of the loose and unsafe condition of the railway
crossing aforesaid.
"15.
That, on the 12th day of April, 1883, the plaintiff herein
was in the employ of the Cincinnati, Indianapolis, St. Louis
and Chicago Railroad Company, in the capacity of a locomotive
engineer; that upon said day he was in charge of a switch
engine, numbered 51; that on or about 5 o'clock in the
afternoon of said day he was, with his engine, pulling out of
the private grounds of Kingan & Company, Limited, a
'cut' of cars upon the house track aforesaid, and
when he had reached, with his engine, a point about four feet
north of the track of the Indiana, Bloomington and Western
Railway Company, his said engine was run into by a car being
backed up upon the salt track aforesaid, by the servants of
the Wabash, St. Louis and Pacific Railway Company.
"16.
That plaintiff's engine at the time it was struck was
moving southeastwardly at the rate of three or four miles
per hour, and the plaintiff was in his proper
place upon the right side of his engine, attending to the
machinery of said engine; that when his said engine was
struck as aforesaid, the plaintiff received great injury, and
when he received the same he was in nowise negligent, but was
in a place where he had a right to be, and doing what he had
a right to do, and he was exercising ordinary care and
prudence.
"17.
That said plaintiff was with his engine upon said house track
at the time he was injured, with the implied
consent of the White River Railroad Company, and was
proceeding across the track of the Indiana, Bloomington and
Western Railway Company upon a signal given to do so by an
employee of said last named company, whose duty it was to
give such signal.
"18.
That the house and salt tracks aforesaid were used by the
various railway companies centering in the city of
Indianapolis, including the Wabash, St. Louis and Pacific
Railway Company, the Indiana, Bloomington and Western Railway
Company, and the Cincinnati, Indianapolis, St. Louis and
Chicago Railway Company, for the purpose of switching and
hauling freight over the same, such as coal, salt, meat,
etc., to and from Kingan & Company's, Limited,
pork-house, with the implied consent of the White River
Railroad Company.
"19.
That, upon said 12th day of April, 1883, the servants of the
Wabash, St. Louis and Pacific Railway Company were backing up
a cut of cars loaded with salt upon the salt track aforesaid;
that the hindmost of said cars was loaded with salt, and when
it reached the railway crossing aforesaid, said car left the
rails of the salt track and ran into the engine under the
charge of the plaintiff herein.
"20.
That said car left the salt track aforesaid at the northwest
bisection of the said railway crossing aforesaid, and it left
said track of the defendant because of the loose and unsafe
condition of said railway crossing.
"21.
That the defendants herein caused, as aforesaid, the injuries of which plaintiff complains in this case,
by their carelessness and negligence in not keeping the
railway crossing aforesaid in ordinary safe condition, but
allowed the same to become loose and out of repair.
"22.
That the plaintiff was somewhat acquainted with the crossing
at which said car left the track, and knew before said car
ran off that said crossing had been allowed to get out of
repair by the defendants, and he also knew that said crossing
was unsafe for the use to which the same was put.
"23.
We further find that the Wabash cut, at the time it was about
to pass over said crossing, was running at a rate of speed of
from four to six miles an hour, and that this speed, combined
with the unsafe condition of said crossing, as aforesaid,
caused said car to leave said crossing.
"24.
We further find that said Wabash cut came onto said crossing
without having...
