Lingenfelter v. Baltimore & O.S.W. Ry. Co.

• Decision Date: 23 January 1900
• Citation: 154 Ind. 49,55 N.E. 1021
• Court: Indiana Supreme Court
• Parties: LINGENFELTER v. BALTIMORE & O. S. W. RY. CO.

154 Ind. 49

55 N.E. 1021

LINGENFELTER

v.BALTIMORE & O. S. W. RY. CO.

Supreme Court of Indiana.

Jan. 23, 1900.

Appeal from circuit court, Clark county; George H. D. Gibson, Judge.

Action for personal injuries by John R. Lingenfelter against the Baltimore & Ohio Southwestern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

George H. Voigt, for appellant. C. L. & H. E. Jewett and John T. Dye, for appellee

JORDAN, J.

Appellant filed his complaint in the lower court to recover damages for injuries sustained by falling into a pit situated upon the premises of appellee. A demurrer was sustained to the complaint, and the judgment rendered against the appellant for cost. The only question presented is, are the facts, as stated in the complaint, sufficient to entitle appellee to a recovery? It appears from the facts averred therein that the defendant is a railroad company, and, at the time plaintiff sustained his injury, owned and operated a railroad in this state; a part of said road being located in the city of Jeffersonville. The defendant's station and yards in said city were located on real estate abutting on Broadway, and extended from First to Fourth streets. The defendant also owned certain grounds which were situated between Third and Fourth streets, in said city, and east of and adjoining Broadway. For 10 years and over, prior to the accident in question, these premises of the defendant were uninclosed, and a certain pathway leading across them, from a point on Third street to Broadway, had been uninterruptedly used by the public in passing from Third street to Broadway, with the knowledge and permission of defendant railroad company. The complaint then charges that at and for some time prior to the accident the defendant negligently maintained on its said premises, under its railroad tracks, a certain pit, the dimensions thereof being 20 feet long, 4 feet wide, and 6 feet deep; the north end of this pit being within 2 feet of the south side of the pathway. It is further averred that during all of said time the defendant negligently suffered this pit to remain without cover or guard, and failed to place any signal of danger at or near the same; that on the day of the accident the defendant, it is alleged, negligently caused a car to be placed and remain on its railroad track in “proximity of said pit, and in such position that the south end of the car stood across said pathway to within a foot of the north line of the pit.” The complaint then alleges the facts relative to the accident in question to be as follows: “That on the 12th day of December, 1896, in the nighttime, the plaintiff was, in a careful and prudent manner, passing and traveling along said pathway from Third street, in a westwardly direction, and while so traveling on said pathway he came to said car then and there standing as aforesaid, and saw it standing before him, but did not, and by reason of the darkness could not, see that it was standing across said pathway, and did not know that it was standing across the same, but believed from the position of said car that said pathway lay immediately beyond and south of said car; and, in order to pass said car in his travel as aforesaid, plaintiff was compelled to, and did, slightly diverge in his course from said pathway, and attempted to pass immediately south of said car, and in so doing he walked and fell into said pit. That, if said car had not been standing across said pathway as aforesaid, said plaintiff would not have diverged from said pathway, and would have safely passed along the same; that if any signal of danger had been placed at or near said pit, or if he had been warned in any way of the dangerous condition of the same, he would not have fallen into it; that at the time he so fell into said pit he did not and could not see the same, and had no knowledge of its existence.” The complaint also states the character of the injuries which appellant sustained by reason of the accident, and alleges his freedom from contributory negligence.

It is evident, we think, when tested by the well-settled rules of law applicable to the facts in this case, that the complaint is not sufficient. The gravamen of the pleading appears to be that appellee for a long time prior to the accident had suffered or permitted the public to use a path leading across its premises in question as a short cut from one public...