Indiana, Bloomington & Western Railway Company v. Barnhart

• Decision Date: 20 March 1888
• Docket Number: 13,003
• Citation: 16 N.E. 121,115 Ind. 399
• Parties: Indiana, Bloomington and Western Railway Company et al. v. Barnhart
• Court: Indiana Supreme Court

16 N.E. 121

115 Ind. 399

Indiana, Bloomington and Western Railway Company et al. v. Barnhart

No. 13,003

Supreme Court of Indiana

March 20, 1888

Petition for a Rehearing Overruled July 10, 1888.

From the Marion Superior Court.

The judgment is affirmed, with costs.

A. C Harris, W. H. Calkins, C. W. Fairbanks, B. Harrison, W. H. H Miller and J. B. Elam, for appellants.

H. N Spaan and S. M. Bruce, for appellee.

OPINION

Niblack, J.

This was, when it was commenced, an action against the Indiana, Bloomington and Western Railway Company, the Wabash, St. Louis and Pacific Railway Company, Kingan & Company, Limited, the White River Railroad Company and the Kingan Railroad Company, for an alleged personal injury, but before the cause was submitted to a jury, it was dismissed as to all except the Indiana, Bloomington and Western Railway Company and the White River Railroad Company.

At the request of the plaintiff, the jury were, at special term, directed to return a special verdict, which they did accordingly, and which was as follows:

"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...