Lake Erie & Western Railroad Company v. Fleming

• Decision Date: 07 October 1915
• Docket Number: 22,807
• Citation: 109 N.E. 753,183 Ind. 511
• Parties: Lake Erie and Western Railroad Company v. Fleming
• Court: Indiana Supreme Court

109 N.E. 753

183 Ind. 511

Lake Erie and Western Railroad Company v. Fleming

No. 22,807

Supreme Court of Indiana

October 7, 1915

From Jay Circuit Court; Daniel W. Comstock, Special Judge.

Action by Marshall Fleming against the Lake Erie and Western Railroad Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1914, Acts 1901 p. 590.)

Affirmed.

John B Cockrum and John M. Smith, for appellant.

John F Lafollette and Emerson E. McGriff, for appellee.

OPINION

Cox, J.

This appeal is from a judgment recovered by appellee against appellant for causing the death of appellee's infant son by the alleged negligence of appellant's employes in switching cars. The errors relied on for reversal are, (1) that the court erred in overruling appellant's demurrer to the complaint, (2) that it erred in overruling its motion for judgment in appellant's favor on answers to special interrogatories notwithstanding the general verdict in appellee's favor, and (3) that it erred in overruling appellant's motion for a new trial.

So far as material to the one objection urged by appellant to the complaint the facts averred in it show that at the time of the injury and death of appellee's son, appellant's railroad ran through the city of Portland and intersected a city street known as Bridge Street which ran north and south that to the west of Bridge Street was located a cold storage and poultry packing plant along the east side of which, and between the plant and Bridge Street, appellant had constructed a switch or spur track from its tracks which were to the north of the poultry plant; that the entrance to the poultry plant was from Bridge Street westward across the switch over which a crossing about twenty feet wide had been constructed of heavy plank for the use of vehicles and persons on foot going back and forth between Bridge Street and the poultry plant; that said entrance and crossing were in constant daily use by many people and were the only way to reach the plant, all of which was well known to appellant and its employes; that on the day appellee's son, then two years and two months old, was injured, the child was at the home of his maternal grandfather who had in his employ a youth fifteen years old; that the grandfather sent this youth to the poultry house about a block from the grandfather's store for a chicken and some eggs and when he went on this errand he took the child with him in a small handwagon in which he also had a crate in which to carry the chicken; that he passed along from Bridge Street on the driveway to the poultry house and left his wagon on the east side of the planked crossing and near the south end of the south car of the two there standing; that he then walked with the child over the planked crossing of the switch track into the poultry plant and got the articles for which he had been sent and returned to his wagon where the child climbed into the wagon, but while the youth was engaged in placing and securing the chicken in the crate the child without fault on the part of the youth got out of the wagon and started back over the planked crossing toward the poultry plant and while so on the track one of appellant's freight trains in charge of its employes negligently and carelessly without warning or notice to the child or the youth "shunted, run and kicked" two more freight cars upon the switch without a brakeman or other employe upon them or upon either of the two cars then standing near the planked crossing, and negligently and carelessly used such force and power in running the additional cars upon the switch that they were violently run against the two cars then standing near the planked crossing and thereby pushing them a distance of about thirty feet and upon and over the planked crossing and causing the south end of the south car to strike and run over the child inflicting injuries from which he died the day following.

The sole objection urged by counsel for appellant to the sufficiency of the complaint to withstand a demurrer for want of facts is that the facts averred show that the child was a trespasser on appellant's track at the time he was injured, or was on the track as a bare licensee, and that therefore appellant's sole legal duty toward him was to refrain from willfully injuring him. The same contention arises on the claims that appellant should have had judgment on the answers to the interrogatories and that the court should have awarded a new trial for the assigned causes that the verdict is not sustained by sufficient evidence and is contrary to law. So, as to this question, these three alleged errors may be considered together. On this question the facts established by the answers follow without material variance the averments of the complaint and on it the evidence fully sustains the complaint. The evidence shows that the switch or spur track was laid by appellant about the time the buildings of the plant were erected, by arrangement between the poultry company and appellant. It was constructed by appellant's employes on the poultry company's ground along side of its building and about six or seven feet from Bridge Street to which the poultry company ground extended. The track was to be owned by appellant and while it was primarily for the use of the poultry company appellant was invested with the right to use it for its own switching purposes when not occupied by cars for the poultry company. About the same time a driveway was constructed by the poultry company from Bridge street across the switch track into its enclosed premises through a slatted gate which was kept open during business hours, and either it or the railroad company planked the crossing, all of which was with knowledge and consent of appellant and by agreement with it. This driveway and planked crossing was used continuously from that time to the time of the injury of appellee's child, a period of about two years, by all of that part of the public having business with the poultry company whether going by foot or by vehicle. It was used almost exclusively by those having business with the poultry company and occasion to visit its premises, the only other entrance being a door on another street which door was kept locked most of the time. The railroad company and its employes had knowledge of the constant use of the driveway and crossing. The poultry company shipped out from the switch about 150 carloads a year and received about 25 carloads. The insistence by counsel for appellant that the youth and the infant son of appellee in whose charge he was were trespassers or at most naked licensees is based on the fact that the driveway and the crossing over the spur track was not a public highway and crossing and that they were not there on any business connected with appellant.

The cases cited and apparently relied on by counsel to sustain them on this point are wholly without strength to do so. The first one, that of Jordan v. Grand Rapids, etc., R. Co. (1904), 162 Ind. 464, 70 N.E. 524, 102 Am. St. 217, was the case of a boy who was injured while on a freight car of the railroad company on a switch or side track, by the movement of the cars. He had climbed on the standing car to view some wild horses in an adjoining stockyard and was clearly a trespasser. Another of the cases cited, Cannon v. Cleveland, etc., R. Co. (1902), 157 Ind. 682, 62 N.E. 8, involved the injury of a young woman by being struck by a moving train on the tracks of the railroad company while she was walking along a footpath five feet wide on its right of way, extending longitudinally along and upon its tracks from one street to another, which the company had constructed for its own use but which the public used for convenience as a short cut between streets, without any allurement or inducement amounting to an implied invitation. She was therefore held to be at most a bare licensee to whom the company owed no duty of active vigilant care. The other case of the three cited in appellant's brief, Krenzer v. Pittsburg, etc., R. Co. (1898), 151 Ind. 587, 43 N.E. 649, 52 N.E. 220, 68 Am. St. 252, bears no analogy to the one before us, either in its facts or in what was decided on the question under consideration, to sustain appellant. It was held in that case that a small boy playing on a crossing of a public highway and a railway track was not a trespasser.

It is not denied by counsel of course that a railway company owes to all using a public highway crossing the duty to use reasonable care to avoid injuring them by the operation of its trains over it; and that to "kick" cars unattended into a switch with such force as to strike other cars standing on its tracks...