Kinsey v. Union Traction Co.

• Decision Date: 27 June 1907
• Docket Number: No. 20,471.,20,471.
• Citation: Kinsey v. Union Traction Co., 169 Ind. 563, 81 N.E. 922 (Ind. 1907)
• Parties: KINSEY v. UNION TRACTION CO. et al.
• Writing for the Court: JORDAN
• Court: Indiana Supreme Court

169 Ind. 563

81 N.E. 922

KINSEY

v.UNION TRACTION CO. et al.

No. 20,471.¹

Supreme Court of Indiana.

June 27, 1907.

Appeal from Superior Court, Marion County; Vinson Carter, Judge.

Action by Lottie A. Kinsey against the Union Traction Company and others. From a judgment of dismissal rendered after sustaining a demurrer to the complaint, plaintiff appeals. Reversed and remanded.Gavin & Davis, for appellant. F. Winter, W. H. Latta, Jas. A. Van Osdol, and F. E. Matson, for appellees.

JORDAN, J.

Appellant, as plaintiff below, on July 28, 1903, commenced this action against appellees, the Union Traction Company, the Indiana Union Traction Company, the Indianapolis Northern Traction Company, the Indianapolis Traction & Terminal Company, and the Indianapolis Street Railway Company. These parties demurred separately and severally to the complaint on the ground of insufficiency of facts. The court sustained the demurrers, to each of which rulings appellant excepted, and, declining to plead further, judgment was accordingly rendered against her. She appeals, and relies for reversal upon the alleged erroneous rulings of the court in sustaining the demurrers in question. By her complaint she charges and alleges that she is, and for five years last past has been, the owner in fee simple of the following described real estate, to wit: Lots 55 and 56 in Ovid Butler's addition to College Corner, all of which real estate is situated in the city of Indianapolis, Marion county, state of Indiana. This real estate, for a distance of 70 feet, fronts and abuts, at the corner of Fifteenth street, upon College avenue, a public street in said city, and runs thence west 160 feet to an alley. It is averred that plaintiff owns as a part of her said real estate the fee simple of the ground in front of her premises extending to the center of said College avenue. For the past five years, plaintiff has had upon the front part of her lot, and within 60 feet of the center of said avenue, a frame house consisting of 15 rooms, constructed and used by her and her family as a dwelling during all of said time; her family so occupying the same consisting of herself and husband, with their children and small grandchildren.

It is further alleged that:

“On April 7, 1898, the defendant the Indianapolis Street Railway Company was organized as a street railway corporation, under the laws of the state of Indiana, for the purpose of owning and operating a street railway in the city of Indianapolis. In said year it obtained a franchise for 30 years and entered into a contract with the city of Indianapolis, for the construction of said railway, and the carriage of passengers thereon over the streets of said city, including said College avenue. In pursuance thereof, it entered upon and has since owned and operated, until the transfer of its said system to the defendant the Indianapolis Traction & Terminal Company, a double-track, electric street railway, over and upon said avenue, one track being laid upon each side of the center thereof, together with a system of iron poles with cross-pieces and wires strung thereon, placed at one side of said avenue. By the terms of its said franchise and contract, said Indianapolis Street Railway Company was forbidden to haul freight over its said lines in said city, and was required to permit the use of said lines and tracks by any incorporated interurban railroad company, upon the consent of the city thereto. Subsequently, upon August 4, 1902, the defendants the Indianapolis Traction & Terminal Company, a corporation organized under the laws of the state of Indiana, received from said city a similar franchise and entered into a similar contract. Upon said last-named date, the defendant the Indianapolis Northern Traction Company, claiming to be a corporation organized under the laws of the state of Indiana, obtained from said city a franchise and entered into a contract, by which it was permitted for 30 years to run its interurban cars over the railroad track of said Indianapolis Street Railway Company, including said College avenue, along and in front of plaintiff's said real estate, with the right to run passenger, baggage, express, and freight cars thereon, for the carriage of passengers, baggage, and freight. Upon said date, said Indianapolis Northern Traction Company entered into a contract with said Indianapolis Street Railway Company, whereby said Indianapolis Street Railway Company agreed that said Indianapolis Northern Traction Company should have the right to run its said passenger and freight cars over its track in said College avenue and other streets of said city of Indianapolis, to the terminal station in the center of the business district of said city.

“Upon August 4, 1902, said defendant, the Union Traction Company, claiming to be a corporation organized under the laws of the state of Indiana, obtained from said city a franchise, and entered into contracts with said city and said Indianapolis Street Railway Company, similar to those of said Indianapolis Northern Company. At the time of entering into such contracts, said Union Traction Company was the owner of, and engaged in operating, an electric railway for the carriage of freight and passengers from the city of Marion, through the cities of Alexandria and Anderson, and through many other cities and towns, a distance of 80 miles, to the city of Indianapolis; and from the city of Elwood, through the cities of Alexandria and Anderson, a distance of 70 miles, to the city of Indianapolis; and from the city of Muncie, through the city of Anderson, a distance of 60 miles, to said city of Indianapolis. The track and right of way of said Union Traction Company only extended to the corporation line of said city of Indianapolis, where its cars then, under and pursuant to said contracts, ran upon and over the tracks of said Indianapolis Street Railway Company, entering College avenue at Fall creek, about Thirtieth street, and running over it a distance of about 20 blocks, or about two miles, and then over other streets about two miles, to the terminal station, in the center of said city. The track of said Union Traction Company is laid with heavy T-rails, weighing from 70 to 90 pounds per yard; the same being fully as heavy as the rails of the ordinary steam railroad and of the same pattern and shape. The tracks on College avenue, over which they run, are of the same kind and size, and they were especially laid of this kind and weight of rails in order that the large cars of said interurban companies might be run thereon. The cars of said Union Traction Company and its successors are, and ever since its operation have been, about 60 feet in length, weighing about 6,400 pounds, placed upon heavy trucks, to which 8 heavy iron or steel wheels are attached. Said cars have each a seating capacity of 60 passengers, and are as large and heavier than the ordinary railroad passenger cars, and oftentimes carry as many as 100, and sometimes 150, passengers. The great majority of the passengers carried by said cars into the city of Indianapolis are persons who reside and come from points outside of the county of Marion, and at least one-half of them reside and are carried from points at least 40 miles distant from said city of Indianapolis.

“Under the schedule which has been maintained by the said Union Traction Company and its successors, up to this time, one regular passenger car arrives at Indianapolis each hour from about 6 a. m. to 12 p. m., and one passenger car leaves said city each hour from about 5 a. m. to 11 p. m. In addition thereto, four other regular passenger trains or cars leave said city of Indianapolis, and four regular passenger trains or cars arrive at said city over said road each day between 7 a. m. and 11 p. m. In addition to this, extra and special passenger cars and trains are run over said road into and from said city of Indianapolis. In addition thereto, said Union Traction Company and its successors run, and since said August 4, 1902, have continued to run, into and from said city of Indianapolis, upon each day, many cars devoted exclusively to the hauling of freight to and from points distant from said city from 10 to 80 miles; the greater portion of such freight being hauled to and from points outside of said city, a distance of 40 miles or more. Each of said cars and trains are and have been run over said College avenue along and in front of said property owned by plaintiff. By the terms of said franchise and contracts with said city, there is no limitation upon the number of cars or trains, nor the size of the trains for freight or passengers, which may be run in said city by said traction companies or their successors. At least eight of said scheduled cars of said Union Traction Company and its successors, running in and out of said city of Indianapolis, each day, make no stop to take on or let off passengers between the city of Indianapolis and the city of Muncie, except at Anderson. Said cars each run the full length of College avenue, and over other streets in the most thickly populated sections in the city of Indianapolis, along all of which streets there is a house upon every 40-foot lot, and said cars in the course of their passage from their entrance on College avenue, to the terminal station, cross at least 50 intersecting streets, and said cars make but one stop between the starting point and the corporation line of such city to take on or let off passengers. The other passenger cars of said Union Traction Company or its successors, running into said city of Indianapolis, over said streets, do not stop within said city at the street crossings to receive local passengers desiring to be transported to other points within the limits of said city, although frequently requested to do so by persons located on the farther street crossing; that being the proper crossing at which the street cars are required to stop for...