Louisville v. Hendricks

• Citation: 128 Ind. 462,28 N.E. 58
• Court: Supreme Court of Indiana
• Decision Date: 11 June 1891
• Parties: Louisville, N. A. & C. Ry. Co. v. Hendricks.

128 Ind. 462

28 N.E. 58

Louisville, N. A. & C. Ry. Co.

v.Hendricks.

Supreme Court of Indiana.

June 11, 1891.

Appeal from circuit court, Jackson county; Thomas L. Collins, Judge.

E. C. Field and C. C. Matson, for appellant. Zaring & Hottel, S. B. Voyles, and Wm. K. Marshall, for appellee.

ELLIOTT, J.

The appellee was a passenger on one of the trains of the appellant. The train in which he took passage was thrown from the track, and he was severely injured. The appellant's employes ran the train against a cow, and the collision caused the train to leave the rails. A witness who had lived near the railroad, and had often seen trains in motion, was permitted to give an opinion as to the rate of speed at which the train was running at the time the cow was struck. In this ruling there was no error. A non-expert witness may give an opinion as to the speed at which a train was moving. Possibly the testimony of a non-expert may be of less value than that of an expert; but that proves nothing to the purpose, for here the question is whether the evidence should be heard, not what weight should be assigned it. The authorities give full support to our conclusion that the testimony was competent. Railroad Co. v. Jones, 108 Ind. 551, 9 N. E. Rep. 476; Railroad Co. v. Crist, 116 Ind. 446, 19 N. E. Rep. 310, and authorities cited; Lawson, Exp. Ev. 462; Rog. Exp. Test. (2d Ed.) 244. The duty of a railroad company engaged in carrying passengers has so often been defined that it is unnecessary to do more than state in bare outline what that duty is; and this we do by saying that it is bound to exercise the highest degree of practicable care to keep its track, machinery, and appliances in a safe condition for use. This duty requires it to take measures to so fence its track as to prevent animals from wandering upon it. Many decisions affirm that the statutes imposing upon railroad corporations the duty of fencing their tracks are valid because they are enacted under the police power, and are intended to protect persons traveling upon the railroads of the country. If the duty to fence is negligently violated, and the violation of duty is the proximate cause of injury to a passenger, his right of action is clear and complete. A violation of a statutory duty has often been adjudged to give a traveler upon a highway a right of action against a railroad company; and, beyond controversy, such a breach of duty must give a right of action where the relation of carrier and passenger exists. It is the relation of carrier and passenger which creates the high duty that rests upon the appellant and brings the case within the strong and salutary rule that the law has established for the protection of travelers who intrust themselves to the care of common carriers. The rule to which we refer is the one that imposes upon the carrier the burden of removing the presumption of negligence which arises from the happening of an accident which causes injury to a passenger. This case illustrates the wisdom and justice of the rule. A passenger cannot, in reason, be expected or required to ascertain the condition of the fences along the line of the carrier's track, for the matter is one peculiarly within the knowledge of the carrier. It must be true that it is a matter within the peculiar knowledge of the carrier, or else it must be true that the carrier remained ignorant and inactive where it was its imperative duty to be active and vigilant. It is, at all events, more than reasonable and just to require of the company, in such a case as this, an explanation of the cause of the accident; and such an explanation, too, as will show that it was not in fault. In this instance, it was its duty to show, at least, that the fences were reasonably secure, and to use care and diligence to make such fences as would prevent domestic animals from straying on the track. The rule to which we refer was thus expressed in Railroad Co. v. Jones, supra: “When the plaintiff made it appear that she was a passenger upon appellant's train, and while being carried as such the car in which she was seated left the track, and she suffered injuries thereby, she had shown a state of things upon which a presumption of negligence arose against the railroad company, which stood with the force and efficiency of actual proof of the fact, and was available for her benefit until negatived and overthrown; and such presumption can only be overthrown by evidence that the casualty resulted from inevitable or unavoidable...