Lake Shore & M.S. Ry. Co. v. Barnes

• Citation: 76 N.E. 629,166 Ind. 7
• Decision Date: 24 January 1906
• Docket Number: No. 20,614.,20,614.
• Court: Indiana Supreme Court
• Parties: LAKE SHORE & M. S. RY. CO. v. BARNES.

166 Ind. 7

76 N.E. 629

LAKE SHORE & M. S. RY. CO.

v.BARNES.

No. 20,614.

Supreme Court of Indiana.

Jan. 24, 1906.

Appeal from Circuit Court, La Porte County; Jno. C. Richter, Judge.

Action by Jennie Barnes against the Lake Shore & Michigan Southern Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, as authorized by Burns' Ann. St. 1901, § 1337u. Reversed.

Miller, Drake & Hubbell, for appellant. Jos. G. Orr, for appellee.

HADLEY, J.

Suit by appellee for personal injuries received at a railroad crossing, alleged to have been caused by the appellant's negligence. Upon issues joined there was a verdict and judgment for the plaintiff, from which the defendant appeals.

The complaint is in two paragraphs. The first charges that the defendant negligently ran its train of cars over the grade crossing at the Michigan road, situate 200 feet east of the east corporation line of the town of New Carlisle, at the dangerous speed of 50 miles an hour, without sounding the engine whistle, or ringing the bell, or otherwise warning the plaintiff of the approach of said train. In the second paragraph the negligence charged is that the defendant negligently ran its train over the Michigan road crossing, situate 200 feet east of the east corporation line of the town of New Carlisle, at a reckless, dangerous, and negligent rate of speed, to wit, 50 miles an hour, without making any attempt to stop or check the train, thereby colliding with the buggy in which the plaintiff was riding and causing her to be greatly injured, without fault on her part; that said Michigan road was, at the time, the main highway between the city of South Bend and the town of New Carlisle, and a great many persons were constantly traveling thereon and crossing said track. Separate demurrers were overruled to each paragraph of the complaint, and separate exceptions reserved to each ruling.

The first paragraph is conceded to be good by failure to set it out in the brief, or to questionits sufficiency in any way. A vigorous assault, however, is made upon the second paragraph, which is worthy of serious consideration. It will be noted that the second paragraph does not charge the omission of any of the signals required of trainmen in approaching grade crossings; neither does it allege that there existed any obscurity to the railroad, nor that there was any obstruction to sight or hearing to persons at or near the crossing. Therefore, as against the pleader in ruling upon the demurrer, we must presume that at the crossing the railroad, in both directions, was straight, open, and free from obstructions of any kind for a distance of more than 80 rods, and that the whistle was sounded and bell rung as provided by the statute. The question, therefore, arising upon the demurrer is twofold: first, can we say as a matter of law that running a train at the rate of 50 miles an hour over an ordinary country highway grade crossing, observing in the doing of it all the signals and warnings enjoined by the statute, constitutes negligence per se; and second, if the first is answered in the negative, then do the facts averred in the second paragraph concerning the amount of travel over the crossing-the environments being ordinary-present such a mixed question of law and fact as calls for its submission to the jury? If it is not of itself an act of negligence to run its train over the crossing in question at a speed of 50 miles an hour, and if the paragraph exhibits no other actionable fault, there can be no recovery upon this paragraph, and it becomes immaterial whether the plaintiff was hurt by a pure accident, or her own want of care. In other words, it must affirmatively appear that the defendant was guilty of some negligent act or omission, or there can be no recovery. Lake Erie, etc., R. R. Co. v. McFall (at this term, December 7th) 76 N. E. 400.

First, then, is it unlawful to drive a railway train over a country and suburban highway crossing at a velocity of 50 miles an hour? Under the laws of the state, corporations are permitted to form, and have been given a license to appropriate private property, and locate, and operate a railroad on the shortest or most practicable route between points. The chief consideration for this important grant of power was to enable such corporations to better serve the public by transporting passengers and freights more speedily than can be accomplished by ordinary conveyances. It was obvious to the Legislature that to require a train to be stopped, or slowed down, at every country road, whenever its managers shall observe a traveler in a common vehicle approaching the railroad at a rate of speed that will carry him to the crossing at the same moment it will be reached by the train, would, on account of the frequency of the crossings in this state, and the length of time required to get trains under way, practically defeat the legislative purpose in granting railroad franchises. Such requirement would be plainly incompatible with rapid transportation. It was the better and faster conveyance desired by the people that inspired the building of railroads and the development of speed, and it is what they expected in return for the rights surrendered for the construction of such roads. So, when the General Assembly, with...