Parker v. The Pennsylvania Company
| Decision Date | 06 June 1893 |
| Docket Number | 16,256 |
| Citation | 34 N.E. 504,134 Ind. 673 |
| Parties | Parker, Administrator, v. The Pennsylvania Company |
| Court | Indiana Supreme Court |
From the Bartholomew Circuit Court.
The judgment is affirmed.
J. F Cox and W. L. Cox, for appellant.
S Stansifer, for appellee.
The appellant sued the appellee for damages in causing the death of William A. Parker.
The complaint was in four paragraphs, to all of which the circuit court sustained a demurrer, and this ruling is here presented for review. The theory of the first and third paragraphs is that the death was negligently produced, while the second and fourth paragraphs proceed upon the theory of willfulness in the acts complained of. The controlling facts alleged in any one of the paragraphs are that, in the city of Columbus, the appellee maintains a railway switch, running east and west, and crossing the company's main line south of, and near to, the station building and platform; that opposite to the station is located the Cerealine Mills, on the west side of said main track; that in said mill is an archway, 250 feet long, and into which said switch was extended and maintained for the purpose of placing cars within said archway for loading from said mill of the product thereof that the archway was so narrow that a box car almost filled it from wall to wall; that on the north side of said archway was a walk or footway, four feet and two inches wide, used by persons passing through the building; that in the immediate vicinity of said crossing were usually large numbers of people that said William A. Parker was unacquainted with said building and its surroundings, when he walked into said archway, upon said footway, to a point near the center of the building, and was killed.
It is alleged that the appellee then knew that persons were in the habit of passing through said archway, and that to run a car through said archway at great speed would endanger the lives of those who might be therein; that there was then an ordinance of said city limiting the speed of cars to four miles per hour and requiring that some person should be caused to proceed in advance of any car moved backwards within said city, for the purpose of keeping the track clear of pedestrians; that in disregard of the requirements of said ordinance, and of the situation with its dangers, as described, the appellee's servants caused an engine to push a box car over said switch and into said archway at the speed of twelve miles per hour, unaccompanied by any person and without the knowledge of, or warning to, said decedent; that said car, so running, ran upon and killed the decedent, there then being no means of escape for him.
The first and third paragraphs allege that the decedent was free from negligence, and the second and fourth paragraphs omit allegations of the absence of contributory negligence and allege that the acts complained of were done willfully. There is also an effort to distinguish the charge of negligence from that of willfulness by alleging that there was a curve in the switch which prevented the decedent from seeing the approaching car, and that from the appearance of the archway he believed in good faith that he could pass through in safety.
It is conceded by appellant's learned counsel that the specific facts alleged control in the construction of the complaint, and that the detached phrases, epithets, and conclusions can not prevail against the facts so alleged. It is further conceded that the failure to observe the ordinance does not constitute willfulness, and it is so held in Sherfey, Admr., v. Evansville, etc., R. R. Co., 121 Ind. 427, 23 N.E. 273. And it is conceded that the presence of contributory negligence on the part of the decedent would defeat a recovery, on the ground of negligence, and that if he was a trespasser such contributory negligence existed.
Considering the right of recovery as for negligence, we find the complaint insufficient, in that it not only fails to allege a license to the decedent to use the archway, but it appears clearly from the facts alleged, that said archway was a place of great danger for one to go into. It was narrow, not of sufficient width to admit a box car and furnish room for retreating; through it ran a railway switch, and said switch so curved as to prevent a view of a car approaching the archway; the decedent was a stranger as to the conditions then existing in and about said archway, including its uses by the appellee. It is not alleged that it was a public thoroughfare, and the facts alleged would seem to imply that it was not. In venturing into the archway he was confronted with all of the elements of danger that the situation afforded; he was in duty bound to observe the dangers thus surrounding him.
While we find it unnecessary to say that the facts show a rash assumption of the dangers incident to the situation, we do feel that it is beyond serious doubt that he was a trespasser upon the appellee's track when he lost his life.
"It is not enough that persons do occasionally use the track, for, to constitute a license, it must appear, either expressly or by clear implication, that the owner of the track authorized them to use it." Palmer v. Chicago, etc., R. R. Co., 112 Ind. 250, 14 N.E. 70.
Here it does not appear that the...
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