Mayne v. Curtis

• Decision Date: 31 March 1920
• Docket Number: No. 10097.,10097.
• Citation: 73 Ind.App. 640,126 N.E. 699
• Parties: MAYNE et al. v. CURTIS et al.
• Court: Indiana Appellate Court

73 Ind.App. 640

126 N.E. 699

MAYNE et al.

v.CURTIS et al.

No. 10097.

Appellate Court of Indiana, Division No. 2.

March 31, 1920.

Appeal from Circuit Court, Huntington County; Samuel E. Cook, Judge.

Action by William A. Mayne and others against John C. Curtis, receiver of the Cincinnati, Bluffton & Chicago Railroad Company, and the City of Huntington. From a judgment sustaining a demurrer of the City to the complaint, plaintiffs appeal. Affirmed.

S. M. Sayler, of Huntington, for appellants.

Milo Feightner, of Huntington, for appellees.

McMAHAN, J.

This is an action by the appellants against John C. Curtis, receiver of the Cincinnati, Bluffton & Chicago Railroad Company, and the city of Huntington. The complaint in substance alleges:

That on December 12, 1913, the appellants, as partners, owned and conducted a grocery store on the west side of Jefferson street in the city of Huntington. That John C. Curtis had been appointed receiver of said railroad company by the circuit court of Huntington county, and as such was operating the said railroad from the city of Huntington in Huntington county, to the city of Portland, in Jay county, with gasoline and electric power for passenger trains and steam power for freight trains. That the appellee city, in July, 1912, granted said railroad company a franchise to use Front street, in said city, from a point 50 feet east of the west end of Front street, at Jefferson street, to a point near the Chicago & Erie Railroad, for the use of its passenger trains. That said company, by its receiver, accepted said franchise and built its railroad on Front street, from said point near Jefferson street to a point near the Chicago & Erie right of way, where it left Front street and connected with its system of railroad, and also with the tracks which led to its roundhouse, machine shops, and coal docks in said city. Section 9 of said franchise provided that-

“The city of Huntington reserves the right to make from time to time such reasonable regulations with regard to speed of trains, and cars, and such other safety appliances and requirements that may be reasonable, and the said grantee hereby agrees to abide by such regulations as fully as if the same were part of this franchise.”

Said franchise was in force December 12, 1913. That it was the duty of the appellee city to keep its streets safe, so that no damage should occur to the public or to the occupants of abutting property on said Front street. That neither the railroad nor the city constructed any bumping block at the end of the railroad near Jefferson street, to protect the public and occupants of abutting property against any accident or damage by reason of the careless management and running of cars on said railroad track, or by reason of any condition in the running of trains or locomotives on said track, which should be beyond the control of said railroad company by reason of any defect in machinery or other cause. That, although the appellee city had notice of the failure of the railroad to install and maintain such bumping block, it negligently failed to require the railroad to erect and maintain such bumping block.

It is also alleged that no derail was installed or maintained by said railroad company or by said city, or required by said city to be installed and maintained by said railroad company, where the railroad track entered upon Front street; that the appellee city had notice of such failure to install such derail from July 26, 1912, and said city negligently failed to require the railroad company to install and maintain such derail. It is then averred: That appellants' grocery store was on the west side of Jefferson street, directly opposite the end of said railroad track; Front street ending in, and not crossing, Jefferson street, so that the west side of Jefferson street at said point was occupied with business buildings. That on December 12, 1913, said railroad company negligently permitted a locomotive engine, fired up and carrying a great force of steam, to get away from the coal dock near the roundhouse without an engineer or fireman being in charge thereof, and to run with great speed over and along said railroad track in Front street till the same left the end of said railroad track and ran across Jefferson street, and into the building occupied by appellants in their said business, to their damage.

The error assigned is that the court erred in sustaining the demurrer of the city of Huntington to the complaint. The specific charge of negligence against the railroad company is that it failed to erect and maintain a bumping block at the end of its track, and to install and maintain a derail near the point where its railroad track entered upon Front street, and that it negligently permitted a locomotive to get away from the coal dock. The negligence charged against the city of Huntington is that it negligently failed to require the railroad company to erect and maintain such bumping block and derail. It is appellants' contention that the failure of the city of Huntington to safeguard the public and owners of abutting property was the neglect to perform an administrative duty for which it is liable. Appellee city contends that the negligence about which complaint is made is the failure to perform a governmental function, and that it is not liable for such failure. The authorities cited by appellants, with the exception of Cushman Motor Works v. City of Lincoln, 97 Neb. 519, 150 N. W. 821, are not in point.

In City of Astoria v. Astoria, etc., Co., 67 Or. 538, 136 Pac. 645, 49 L. R. A. (N. S.) 404, the city filed a complaint to recover over from the railway company the amount of a judgment recovered by a traveler on a public street in an action against the city. The complaint against the city was founded upon the failure of the city to maintain the street where the accident occurred in a reasonably safe condition for travel. There was a judgment against the city, and, after having paid the same, it began an action against the railroad company. From the complaint against the railroad it appears that active negligence was charged against the railroad in creating a dangerous condition of the street, while the city was charged with the passive negligence of permitting the street to remain in an unsafe condition. It was there held that the efficient and primary cause of the accident was the negligence of the railroad company, the negligence of the city being constructive rather than actual, and that the railroad was liable over to the city. The court stated the general rule to be that a city is required to keep its streets in a reasonably safe condition for travel.

In City of Hammond v. Jahnke, 178 Ind. 177, 99 N. E. 39, the theory of the complaint was that the city and the railroad company jointly constructed and maintained the crossing in question, and had negligently permitted the same to become and remain out of repair; that the city knew of said condition and the danger arising therefrom, and had negligently and carelessly failed to repair the same. The city was there held liable, not because of its failure to require the railroad company...