Morley v. Cleveland, 14801.

• Citation: 194 N.E. 806,100 Ind.App. 515
• Decision Date: 26 March 1935
• Docket Number: No. 14801.,14801.
• Parties: MORLEY v. CLEVELAND, C., C. & ST. L. R. CO.
• Court: Court of Appeals of Indiana

100 Ind.App. 515

194 N.E. 806

MORLEY

v.CLEVELAND, C., C. & ST. L. R. CO.

No. 14801.

Appellate Court of Indiana, in Banc.

March 26, 1935.

Appeal from Knox Circuit Court; William S. Hoover, Judge.

Action by Leona Morley against the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company. From a judgment sustaining defendant's demurrer to the complaint, plaintiff appeals.

Affirmed.

Shuler McCormick, of Vincennes, for appellant.

Ewing Emison, of Vincennes, for appellee.

WOOD, Judge.

The appellant brought suit against appellee by an amended complaint in two paragraphs to recover damages for personal injuries alleged to have been sustained as the result of a collision between the automobile in which appellant was riding as the guest of her husband and a freight train being operated by appellee, over a public crossing, located in the state of Illinois.

The material facts alleged in the first paragraph of complaint were: That on August 14, 1931, and for a long time prior thereto, there was a state highway running north and south through Edgar county, Ill., designated as state road 1; that this highway was intersected by a state highway running east and west through said county and state designated as state road 121; that both of said highways were main-traveled highways and paved with concrete to the width of approximately 18 feet; that the terrain at the intersection of said highways and for miles in each direction therefrom was level; that said highways were smooth and level, with center lines to separate the divergent courses of travel, and traffic signs and signals were placed at appropriate places for the safety and convenience of the traveling public; that there were drainage ditches along each side of the highway, leaving the surface thereof but a few inches above the level of the adjacent fields, which facts were known to appellee; that on the day in question, and for a long time prior thereto, the appellee had owned and operated a single track railroad through said county running north and south parallel with state road 1, and about one-half mile west thereof; that appellee's railroad tracks crossed state road 121 at grade at a point about one-half mile west of the intersection of said highways; that this railroad crossing was on an even level with the surface of the highway and the fields thereabout; that neither appellant nor her husband had any knowledge of the existence of said railroad or the fact that it crossed state road 121; that on the day in question tall corn was growing in the fields on both sides of state road 121, from its intersection with state road 1, to appellee's right of way, obscuring from view of the west-bound traveler on state road 121 appellee's railroad track and trains that might be approaching said grade crossing from the north or south; that said facts were known to the appellee; that the track of the appellee at said crossing was filled in between the rails, and paved with substance of color similar to the roadway, the effect of which, together with the level terrain and other surroundings set out, disguised and concealed the existence of the grade crossing and railroad, making it dangerous and hazardous, which facts were known to appellee; that appellee, heedless of the rights of the public and careless of its safety, negligently failed and neglected at said time to erect and maintain any warning, sign, signal, or device of any kind or character on each side of said railroad and grade crossing; that, because of the danger and existing hazard as aforesaid, it became and was prudent and necessary for appellee to erect and maintain warning signs and signals at and near said grade crossing, in such manner and position and of such character as to be a notice to the public of the existence and proximity thereof, in the performance of which duty the appellee negligently failed; that at about 10 o'clock on the evening in question appellant was riding as a guest and passenger with her husband at her side, in his Ford automobile, from Vincennes, Ind., to Peoria, Ill., where appellant's husband had business; that the weather was unusually cool for that time of the year, and they were riding with the windows of the automobile closed; that the sky was overcast and it was utterly dark; that a light wind was blowing a little west of south; the automobile in which appellant was riding was equipped with standard lights of the factory, adequate and lawful, and were lighted with full power; that appellant's husband was driving at the approximate rate of speed of 40 miles per hour after turning onto state road 121 from state road 1; that there was a clear view ahead as he drove west on state road 121 of approximately 200 feet; that the driver of said automobile was under thirty years of age, an experienced motorist of normal vision, and was driving in the exercise of due care and caution, both occupants of the automobile keeping a lookout for traffic signs, signals, other traffic and possible obstructions on the way; that the smooth modern highway stretched for miles ahead of them in a level course; that they could not see any light, obstruction, vehicle, or train, beyond the place where the rays of their lights met the surface of the highway, and none within the range; that there was no light to the right or left of them over the tall corn; that before appellant and her husband turned onto state road 121, and before they came into vision of even a light at said grade crossing, then unknown to them, a locomotive pulling a long train of cars had passed said grade crossing going south; that, as appellant and her husband came onto state road 121, its light, if it had any, was obscured by tall corn in the field to the south; that no car bearing any light in said train passed the grade crossing before appellant and her husband came up to it; that it was dark and the clouds of smoke from the locomotive described no limits, were indistinguishable against the darkness beyond the range of vision of the headlights of the automobile and against the overcast sky, and became and were an effectual barrier, all unknown to appellant and her husband in the distance between them and the passing train; that as they neared said grade crossing, still going at the approximate speed of 40 miles per hour as aforesaid, they drove into said cloud of smoke hovering near the ground between the passing train and the adjacent corn field, without any previous warning of its existence; that appellant's husband slackened his speed as soon as he realized he had driven into a cloud of fog or smoke and as soon as he had time to realize or be aware of the fact that his headlights did not shed sufficient light to enable him to stop within the distance for which he could see ahead, and, when within 20 or 25 feet from said train of passing freight cars, saw them for the first time, attempted to stop and turned to the left, but too late to avoid colliding with the same. Appellant then described her injuries, after which she alleged that the proximate cause of said injuries was the unlawful operation of appellee's train over and across said railroad crossing in violation of its duty to erect and maintain suitable and adequate warning signs, signals, or devices of some kind on the east side of said grade crossing to warn the traveling public of the existence and proximity of said railroad.

The material allegations of the second paragraph of complaint were very similar to those contained in the first paragraph, except it alleged that appellee had failed to comply with certain statutes of the state of Illinois, set out in this paragraph requiring railroad companies to erect certain signs along public highways at railroad crossings, warning the traveling public of their existence.

The appellee demurred to each paragraph of complaint for insufficiency of facts to state a cause of action. The memoranda filed in support of the demurrer was upon the theory, expressed in various ways, that the complaint failed to allege that appellee was guilty of any negligence which contributed to, or had a causal connection with, the collision; that there were no facts alleged showing any duty upon the appellee to erect or maintain warning signs or signals at the crossing; that the appellant's negligence contributed to the injuries; that, if there was any cause of action, it originated in the state of Illinois; that there were no facts alleged showing a right of action under the laws of that state.

This demurrer was sustained to each paragraph of appellant's complaint, whereupon she elected to abide by the court's ruling on the demurrer, refused to plead further, and judgment was rendered against her that she take nothing by her action. From this judgment appellant appeals, assigning as error for reversal the sustaining of appellee's demurrer to each paragraph of her amended complaint.

[1][2] Inasmuch as the acts complained of in each paragraph of the amended complaint occurred in the state of Illinois, we must look to the laws of that state for a declaration of the respective rights and duties existing between the parties to this action. The first paragraph of the complaint seeks recovery upon the theory of a tortious invasion of appellant's rights by appellee, as established and defined by the common law. We presume that the common law, as recognized and enforced in this state, obtains under similar circumstances in the state of Illinois, and is enforced in that state in like manner as we enforce it, until the contrary is made to appear. Baltimore, etc., R. Co. v. Reed (1901) 158 Ind. 25, 62 N. E. 488, 56 L. R. A. 468, 92 Am. St. Rep. 293; Baltimore, etc., R. Co. v. Jones (1908) 170 Ind. 370, 83 N. E. 705. The first paragraph of the complaint does not contain any allegations, intended to overcome this presumption, so its sufficiency to state a cause of action must be determined by the rules of the common law as they existed in this...