Lake Erie & W. Ry. Co. v. Howarth

• Decision Date: 17 June 1920
• Docket Number: No. 9715.,9715.
• Citation: 73 Ind.App. 454,127 N.E. 804
• Court: Indiana Appellate Court
• Parties: LAKE ERIE & W. RY. CO. v. HOWARTH.

73 Ind.App. 454

127 N.E. 804

LAKE ERIE & W. RY. CO.

v.HOWARTH.

No. 9715.

Appellate Court of Indiana, Division No. 1.

June 17, 1920.

Appeal from Circuit Court, Warren County; Burton B. Berry, Judge.

On petition for rehearing. Rehearing denied, and former opinion affirmed.

For former opinion, see 124 N. E. 687.

BATMAN, J.

Appellant has filed a petition for a rehearing in this cause in which it asserts, among other things, that this court erred in holding that there was no reversible error in the action of the trial court in admitting certain evidence, and in giving certain instructions with reference to the electric bell, which it is alleged appellant has theretofore established at the highway crossing in question, for the purpose of warning travelers on such highway of the proximity of trains. In this connection it should be noted that the complaint contains the following allegations with reference to such electric bell:

“That long before said day the defendant, for the purpose of warning travelers approaching said highway crossing from the north or south, had established an electric bell or gong near said crossing, which was supposed to and intended to automatically ring out an alarm before defendant's said trains approached said highway crossing, in ample time to warn approaching travelers on said highway of the proximity of a train, so that the traveler could stop his vehicle before approaching said track. *** And gave out and pretended that said automatic device or gong was amply sufficient, and was reliable and could and would give all persons about to use said crossing ample warning of all approaching trains. *** That as said automobile approached said crossing said driver *** and this plaintiff both looked carefully for an approaching train, *** and both listened carefully to hear if said automatic device was sounding. That they neither heard any sound nor saw any sign of any approaching train at said point, and, in good faith believing that no train was approaching said point, carefully approached said crossing. *** And plaintiff avers that said defendant, at and before said time, had carelessly suffered and permitted said automatic device to become and remain out of repair, so that the same failed to give plaintiff and her husband any warning of the train of defendant which was at said time rapidly approaching said crossing from the west.”

[1] It is thus made apparent that one of the acts of negligence on which appellee relied was the failure of appellant to maintain the electric bell in good working order, after having installed it for the purpose alleged. But appellant contends that such allegations would not justify the court in admitting evidence and giving instructions with reference to such bell. It bases this contention on two propositions as follows: (1) That there was no law imposing a duty upon it to maintain an electric bell at such crossing, and hence actionable negligence could not be predicated on such failure. (2) That even if the law imposed such duty, knowledge of the alleged defective condition of such bell on the part of appellant, and want of such knowledge on the part of appellee, would be essential elements in an action based on a failure to discharge such duty, neither of which are alleged in the instant case. Respecting the first proposition asserted by appellant, it may be said that, while the law did not impose upon appellant the specific duty, in the first instance, to install and maintain an electric bell at such crossing, yet, having installed such bell for the purpose alleged, the duty rested upon it, while maintaining the same, to use reasonable care to keep it in good condition, and its failure so to do would be an act of negligence. Wabash R. Co. v. McNown (1912) 53 Ind. App. 116, 99 N. E. 126, 100 N. E. 383.

[2][3][4] As to appellant's second proposition it must be admitted that knowledge on the part of appellant, and want of knowledge on the part of appellee, as stated above, are essential, in order to fasten liability on the former, for a failure...