Kinsey v. Union Traction Company, 20,471

Docket Nº20,471
Citation81 N.E. 922, 169 Ind. 563
Case DateJune 26, 1907
CourtSupreme Court of Indiana

81 N.E. 922

169 Ind. 563

Kinsey
v.
Union Traction Company et al

No. 20,471

Supreme Court of Indiana

June 26, 1907


Rehearing Denied January 8, 1908.

From Superior Court of Marion County (65,668); Vinson Carter, Judge.

Suit by Lottie A. Kinsey against the Union Traction Company and others. From a decree for defendants, plaintiff appeals.

Reversed.

Gavin & Davis, for appellant.

F. Winter, W. H. Latta, J. A. Van Osdol and F. E. Matson, for appellees.

Jordan, J. Montgomery, J. Hadley, C. J. Gillett, J. Monks, J.

OPINION [81 N.E. 923]

Jordan, J.

Appellant, as plaintiff below, on July 28, 1903, commenced this action against appellees, the Union [169 Ind. 564] Traction Company, the Indiana 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 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 fifty-five and fifty-six in Ovid Butler's addition to College Corner, all of which real estate is situated in the city of Indianapolis, Marion county, Indiana; that this real estate, for a distance of seventy feet, fronts and abuts, at the corner of Fifteenth street, upon College avenue, a public street in said city, and runs thence west one hundred sixty feet to an alley; 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; that for the past five years plaintiff has had upon the front part of her lot, and within sixty feet of the center of said avenue, a frame house consisting of fifteen 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; that "on April 7, 1898, the defendant 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; that in said year it obtained a franchise for thirty 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 [169 Ind. 565] avenue; that in pursuance thereof, it entered upon and has since owned and operated, until the transfer of its said system to the defendant 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 crosspieces and wires strung thereon, placed at one side of said avenue; that, 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; that subsequently, upon August 4, 1902, the defendant 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; that upon said last-named date the defendant 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 thirty years to run its interurban cars over the railroad track of said Indianapolis Street Railway Company, including the track on 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; that upon said date said Indianapolis Northern Traction Company entered into a [81 N.E. 924] 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; that upon August 4, 1902, said defendant Union [169 Ind. 566] 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 Traction Company; that 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 eighty miles, to the city of Indianapolis, and from the city of Elwood, through the cities of Alexandria and Anderson, a distance of seventy miles, to the city of Indianapolis, and from the city of Muncie, through the city of Anderson, a distance of sixty miles, to said city of Indianapolis; that the track and right of way of said Union Traction Company extended only to the corporation line of said city of Indianapolis, and 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 said avenue a distance of about two miles, and then over other streets about two miles, to the terminal station, in the center of said city.

It is further alleged that the track of said Union Traction Company is laid with heavy "T" rails, weighing from seventy to ninety pounds per yard, the same being fully as heavy as the rails of the ordinary steam railroad, and of the same pattern and shape; that the tracks on College avenue, are of the same kind and size, and the rails thereof were especially laid of this kind and weight in order that the large cars of said interurban companies might be run thereon; that the cars of said Union Traction Company and its successors are, and ever since its operation have been, about sixty feet in length, weigh about sixty-four thousand pounds, and are placed upon [169 Ind. 567] heavy trucks, to which eight heavy iron or steel wheels are attached; that said cars have a seating capacity of sixty passengers, and are as large as, and havier than the ordinary railroad passenger-cars, and often carry from one hundred to one hundred fifty passengers; that the great majority of the passengers carried by said cars into the city of Indianapolis are persons who come from points outside of Marion county, and at least one-half of them are carried from points at least forty miles distant from said city of Indianapolis; that under the schedule which has been maintained by said Union Traction Company and its successors, up to this time, one regular passenger-car arrives at Indianapolis each hour from 6 o'clock a. m. to 12 o'clock p. m., and one passenger-car leaves said city each hour from 5 o'clock a. m. to 11 o'clock p. m.; that in addition thereto four other regular passenger-cars leave said city of Indianapolis and four regular passenger-cars arrive at said city over said road each day between 7 o'clock a. m. and 11 o'clock p. m.; that, in addition to this, extra and special passenger-cars are run over said road into and from said city of Indianapolis; that 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 ten to eighty miles distant from said city, the greater portion of such freight being hauled to and from points distant forty miles or more from said city; that each of said cars is and has been run over said College avenue, along and in front of said property owned by plaintiff; that 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; that at least eight of said scheduled cars of said Union Traction Company and its successors, running in and [169 Ind. 568] 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; that said cars run over a part of College avenue, and over other streets in the most thickly populated parts of the city of Indianapolis, along all of which streets there is a house upon every forty-foot lot, and said cars, in the course of their passage from their entrance on College avenue to the terminal station, cross at least fifty 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; that 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...

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