Louisville, New Albany and Chicago Railway Co. v. Smith

• Decision Date: 20 October 1883
• Docket Number: 10,454
• Citation: 91 Ind. 119
• Parties: The Louisville, New Albany and Chicago Railway Company v. Smith
• Court: Indiana Supreme Court

91 Ind. 119

The Louisville, New Albany and Chicago Railway Company v. Smith

No. 10,454

Supreme Court of Indiana

October 20, 1883

From the Lawrence Circuit Court.

The judgment is affirmed, with costs.

G. W Friedley, E. D. Pearson and H. H. Friedley, for appellant.

J. W Buskirk and H. C. Duncan, for appellee.

OPINION

Howk J.

The first error complained of by the appellant in this case is the overruling of its demurrer, for the want of sufficient facts, to appellee's complaint. In his complaint the appellee alleged, in substance, that on October 20th, 1881, the track of appellant's railroad crossed the public highway leading from Bloomington to Ellettsville, in Monroe county; that at such crossing the appellant undertook to keep the same in good repair for the use of the public; that, on the day named, appellant permitted such crossing to get out of repair and become dangerous to cross; that the appellee, not knowing of the defective condition of such crossing, on the day named, and being a traveller on said highway, undertook to cross appellant's railroad track with his wagon and team of two horses, when, on account of such defective crossing, the appellee's horse, which he was driving, became fast between the rail of appellant's track and the timber across such highway, and in trying to extricate himself, without appellee's fault, was violently thrown to the ground, by which he was damaged and rendered wholly worthless, to appellee's damage $ 100, for which sum he demanded judgment.

In discussing the sufficiency of this complaint, the first objection thereto of appellant's counsel is thus stated in their brief: "It assumes, as will be seen, that it was the duty of the railroad company to keep the highway at the crossing in good repair. When a highway is laid out crossing a railroad, the public, we take it, assume all the risks incident to the crossing." We are not inclined to approve of or adopt this position of counsel. In section 3903, R. S. 1881, in force since May 6th, 1853, it is provided as follows in relation to railroad companies: "Every such corporation shall possess the general powers, and be subject to the liabilities and restrictions expressed in the special powers following: * * *

"Fifth. To construct its road upon or across any stream of water, watercourse, road, highway, railroad, or canal, so as not to interfere with the free use of the same, which the route of its road shall intersect, in such manner as to afford security for life and property; but the corporation shall restore the stream or watercourse, road or highway, thus intersected, to its former state, or in a sufficient manner not to unnecessarily impair its usefulness or injure its franchises."

The appellant's counsel claim, however, that these statutory provisions are not applicable to the case in hand, because, they say, "The complaint does not show, nor, in point of fact, is it pretended, that the highway has not grown into use since the railroad was built." In other words, it is claimed by counsel, as we understand them, that the clause of the statute quoted is applicable only to the original construction of appellant's railroad across highways then in existence, and does not apply to a case, where it may be assumed, for the want of an averment to the contrary, that the highway was laid out and opened across the railroad after its construction. We do not think that the clause of the section quoted should receive from the courts any such literal or limited construction in the interests either of the public or of the railroad company. Whether the highway is laid out and opened before or after the construction of the railroad, the legislative intent in the clause quoted is clear, we think, that the...