Pittsburgh, C., C. & St. L. Ry. Co. v. Lamm

Decision Date30 March 1916
Docket NumberNo. 8824.,8824.
Citation61 Ind.App. 389,112 N.E. 45
CourtIndiana Appellate Court
PartiesPITTSBURGH, C., C. & ST. L. RY. CO. v. LAMM.

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Miami County; Joseph N. Tillett, Judge.

Action by Willis C. Lamm against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instruction.

See, also, 110 N. E. 997.

George E. Ross, of Logansport, for appellant. Cole & Cole, of Peru, for appellee.

MORAN, J.

Appellee, whose property abuts upon appellant's right of way, recovered damages in the sum of $500, which he claimed to have suffered by reason of appellant's raising its railroad grade some 12 feet and constructing an additional track. In this appeal, which is from a judgment rendered on the verdict of a jury for the foregoing damages, appellant assigns as error the refusal of the court to grant appellant's petition to correct the record nunc pro tunc, the overruling of appellant's demurrer to the first and second paragraphs of complaint, and the overruling of appellant's motion for a new trial.

[1] The order book entry does not affirmatively show that the instructions given and refused were filed, and to cure this infirmity appellant petitioned the trial court for an entry nunc pro tunc. The proceedings asking for this relief are regular, they show that the instructions were in fact filed, and the minute upon the court's bench docket, viz., “Instructions as given and refused filed,” is a sufficient memorandum to authorize the granting of the application for a nunc pro tunc entry. Ewbank's Manual (2d Ed.) § 214a; Brittenham v. Robinson, 22 Ind. App. 536, 54 N. E. 133;Perkins et al. v. Hayward, 132 Ind. 95, 31 N. E. 670.

[2] The only objection urged by appellee against the granting of the relief sought by appellant for an entry nunc pro tunc is that appellant, through its counsel, caused the clerk to alter the entry as originally made in reference to the instructions, and that the infirmity in the record is not due to the mistake or misprision of the clerk, but due to appellant's counsel. There are instances where the litigant will be bound by an error which he invited the court to make. In the first instance the clerk made an entry from the court's minutes, which virtually spoke the truth, and what is now being contended for by appellant; but afterwards, at the request of counsel for appellant, the same was altered by interlineation by the clerk, so as not in fact to speak the truth, and to the detriment of the one suggesting the same to be made. This was not done by the sanction or authority of the court, but by a ministerial officer of the court, and evidently upon a mistaken notion of counsel as to what the entry should contain. No one was misled thereby. It is a principle of law that:

“A party will be relieved against his own mistake or carelessness where no rights of third persons have intervened, but not where rights have been lost, or money parted with, on the faith of the apparent facts, without fault of anybody except the party seeking relief.” Gray v. Robinson, 90 Ind. 527.

We are not impressed with the argument that, because the alteration was invited by the one now complaining, the record should not be made to speak the truth, and remain as it is. In Security Co. v. Arbuckle, 123 Ind. 518, 24 N. E. 329, it was said:

“It is the duty of the court to see that a correct minute is made on its order book of every step taken in any pending action.”

The court erred in refusing to direct the entry as prayed, and while this calls for a remanding of the cause, with directions to the lower court to instruct the clerk of the Miami circuit court to correct the entry nunc pro tunc as prayed, before proceeding further, however, the conclusion we have reached on the merits of the appeal, independent of the questions sought to be presented under the correction of the record, make it unnecessary for us to remand the cause at this time for the express purpose of correcting the record.

The complaint is in two paragraphs; the material allegations of the first paragraph being that appellant is a corporation, operating a railroad through the town of Amboy, Ind., which runs in an easterly and westerly direction, and that appellee's lots Nos. 38, 39, a part of 42, and 43 adjoin the right of way of appellant's railroad. On lot 43 is a frame dwelling house used by appellee as a residence. Prior to October, 1909, appellee's property was well drained, and the view to the north across the town was unobstructed, and there was a free passage of air over the premises. No dirt, dust, or cinders were thrown upon the premises, except such as were emitted from the locomotive, and the premises were desirable as a residence and of great value. In 1909, pursuant to an ordinance passed by the town board, and a contract entered into between the town board and appellant, appellant lowered the grade of the streets and raised the grade of its roadbed by an embankment of yellow clay. In front of appellee's premises the embankment is 12 feet above the former level of its roadbed and 12 feet above the level of appellee's property. The base of the embankment has been widened by the washing down of yellow clay, which is being deposited on appellee's lawn and walks, and in the constructing of the embankment no drains were provided alongside the grade, and the water falling on the same is cast with great force upon appellee's lots, and which flows under his house and becomes stagnant and endangers the health of appellee's family. The embankment is an unsightly structure, shuts off the view to appellee's house, and prevents free access of the air and light. A great amount of dirt, dust, and cinders, in addition to such as are emitted from the locomotive, are thrown upon appellee's premises; and the noise and vibration caused by the passing trains have greatly increased by reason of the elevation of the tracks. Appellee's property has been damaged in the sum of $1,500 by being rendered undesirable as a residence. There is no material difference between the first and second paragraphs of the complaint. Both set forth a copy of the town ordinance and the contract entered into between appellant and the town.

[3] It may be stated as a general proposition that a railroad company has the right to improve, repair, or change its roadbed, and raise or lower its grade, when in its judgment to do so would increase its efficiency, without rendering itself liable to respond in damages to an abutting property owner, upon the theory that such improvement does not constitute an additional burden not included in the original appropriation, and is not liable unless such change is made in a careless and negligent manner. Baltimore & Ohio S. W. R. Co. v. Quillen, 34 Ind. App. 331, 72 N. E. 661, 107 Am. St. Rep. 183;Pittsburgh, etc., R. Co. v. Atkinson, 51 Ind. App. 315, 97 N. E. 353;Egbert et al. v. Lake Shore, etc., R. Co., 6 Ind. App. 350, 33 N. E. 659. Pursuant to an ordinance by the town of Amboy, appellant raised its roadbed and tracks through the town, and as a part of the ordinance a contract was entered into between appellant company and the town covering the manner in which the improvement was to be made, and among other things it is provided that appellant was to pay all damages to property which was caused by the proposed improvement, and to have due regard for the rights of individuals and corporations affected by the improvement or change incident thereto. As aforesaid, a copy of the ordinance and contract was filed with and made a part of each paragraph of complaint.

It is appellee's contention that the action was based upon the ordinance and contract, and by reason thereof his right of recovery was enlarged over and above what it would have been under the common law. On the part of appellant it is contended that there is nothing in the contract imposing a liability on it for the alleged injuries as set forth in the complaint, and that upon this theory the demurrer should have been sustained. The relief sought by appellee in both paragraphs of complaint was for damages to his real estate by reason of the change of the railroad grade. Many elements of damage are pleaded, growing out of and as a result of the construction of the grade or embankment built by appellant; but as to whether a recovery is sought under the ordinance and contract, or independent of the same, is not clear from the allegations of the complaint. In the admission of evidence, the court excluded as an element of damage the injury alleged to have been caused by reason of the elevation of the road and the building...

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4 cases
  • Schiro v. State, 1181S329
    • United States
    • Supreme Court of Indiana
    • 5 Agosto 1983
    ...285 N.E.2d 822; O'Malia v. State, (1934) 207 Ind. 308, 192 N.E. 435; Schoonover v. Reed, (1879) 65 Ind. 313; Pittsburgh etc. R. Co. v. Lamm, (1916) 61 Ind.App. 389, 112 N.E. 45." Stowers v. State, (1977) 266 Ind. 403, 410-11, 363 N.E.2d 978, 983. There has been precedent for nunc pro tunc e......
  • Arsenal Sav. Ass'n v. Westfield Lighting Co., Inc.
    • United States
    • Court of Appeals of Indiana
    • 26 Noviembre 1984
    ...285 N.E.2d 822; O'Malia v. State, (1934) 207 Ind. 308, 192 N.E. 435; Schoonover v. Reed, (1879) 65 Ind. 313; Pittsburgh etc. R. Co. v. Lamm, (1916) 61 Ind.App. 389, 112 N.E. 45." Stowers v. State, (1977) 266 Ind. 403, 410-11, 363 N.E.2d 978, 983. The crux of a nunc pro tunc entry, then, is ......
  • Stowers v. State, 1176S373
    • United States
    • Supreme Court of Indiana
    • 21 Junio 1977
    ...285 N.E.2d 822; O'Malia v. State (1934), 207 Ind. 308, 192 N.E. 435; Schoonover v. Reed (1879), 65 Ind. 313; Pittsburgh, etc., R. Co. v. Lamm (1916), 61 Ind.App. 389, 112 N.E. 45. In addition to the above requirements, such entries may be made only upon notice to the parties and an opportun......
  • Davoust v. Mitchell
    • United States
    • Court of Appeals of Indiana
    • 23 Abril 1970
    ...is a new and separate injury which gives rise to a new cause of action.' The court, in the case of Pittsburgh, etc., R. Co. v. Lamm (1916), 61 Ind.App. 389, 400, 112 N.E. 45, 48, '* * * If the nuisance has been abated, then the diminution of the rental value of the property during the time ......

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