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

Decision Date07 March 1919
Docket NumberNo. 9818.,9818.
CourtIndiana Appellate Court
PartiesPITTSBURGH, C., C. & ST. L. RY. CO. v. TATMAN.

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Blackford County; Wm. H. Eichhorn, Judge.

Action by George Tatman against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

G. E. Ross, of Logansport, for appellant.

Aaron M. Waltz and Ashley G. Emshwiller both of Hartford City, and E. H. Graves, for appellee.

ENLOE, J.

This was an action to recover damages for an injury alleged to have been sustained when appellee's horse became frightened at an approaching train of appellant while crossing the tracks of appellant in the city of Hartford City.

The complaint was in two paragraphs, to each of which demurrers were filed and overruled, and appellant then answered in general denial.

[1] The first and second assigned errors are that the court erred in overruling the demurrers to the separate paragraphs of the complaint.

In its brief filed, and also in the oral argument had in this court, appellant, with great earnestness, insisted that neither of said paragraphs is sufficient to state a cause of action. The paragraphs are of some length, but we here set out the averments of the first paragraph, so far as said averments are material to the matter urged against the sufficiency of said paragraphs, said averments being as follows:

“That on the 29th day of May, 1915, and for a long time prior thereto, the said defendant was the owner of and operated a railroad extending from Union City, Indiana, to Marion, Indiana, and through the county of Blackford, in said state, and through the city of Hartford City, in said county, and over and across Washington street, in said city of Hartford City, Indiana; that said Washington street, on said 29th day of May, 1915, at the time of the injury hereinafter complained of, and for a long time prior thereto, extended east and west through said city, from the west corporation line to the east corporation line thereof, and past the public square therein, and through the main business section of said city, and was a much-used and traveled street, being the main thoroughfare and avenue of ingress and egress into and from said city from the west; that the tracks of said defendant's railroad where the same crossed said Washington street as aforesaid crossed the same in a northwesterly and southeasterly direction, at an angle of about 45 degrees, and extended or run in that direction and upon that angle to the northwest a distance of about 20 rods from said crossing, where the same turned abruptly to the west; *** that on said day, and for a long time prior thereto, the said defendant company owned, maintained, and used over and across said Washington street, at said crossing, five separate tracks, on the grade line of said street, two main tracks, and three side tracks or switches, all of which extended and run across said street at an angle and in the direction aforesaid, parallel with each other, and about six feet apart, all of which were used during all of said time, and on said day were being used by said defendant company in the operation of its said railroad trains, cars, and locomotive engines; that on said day, and for a long time prior thereto, the buildings of the factory of the Johnston Glass Company occupied the ground immediately west and south of the tracks aforesaid of said defendant company, and immediately north of said Washington street, and said defendant company maintained and used for its said cars and locomotive engines a switch connected with its said tracks at a point about 60 feet west of said crossing, and extending directly westward parallel with said Washington street to and beyond said factory buildings of the said the Johnston Glass Company; that at said time, and for a long time prior thereto, said defendant company kept and maintained a switching engine and crew at said city of Hartford City, Indiana, which switching engine said defendant company caused to be operated by its employés or crew back and forth upon and over its said tracks, and over and across said Washington street, and by reason of the facts aforesaid, and the further facts that defendant's said trains, cars, locomotive engines, and said switch engine were frequently passing and repassing over and across said street upon defendant's said tracks during each day, said crossing was a dangerous crossing, and by reason thereof said defendant company upon said 29th day of May, 1915, had, and for a number of years prior thereto had, kept and maintained thereat a watchman or flagman for the purpose of notifying persons along said Washington street and over and across said crossing of danger, and when it was safe, and when it was not safe, for them to pass, or attempt to pass, over and across said crossing and tracks, and had erected and maintained, and on said day was maintaining, a small house or booth for the use of such watchman or flagman, at a point immediately west of said tracks and south of said street, upon its right of way, all of which the plaintiff on said day knew; *** that at said time some of defendant's cars were standing upon the east end of the switch leading to the Johnston factory buildings as aforesaid, and a cut of cars of said defendant was standing upon one of defendant's tracks aforesaid north and west of crossing, a distance of about 75 feet, and north of where plaintiff and his said buggy was located, and by reason thereof and of said factory buildings plaintiff's view of defendant's said tracks to the north and west was completely cut off and obstructed, and at said time he was unable to see, and did not see, by reason thereof, but a very short distance to the north and northwest; that after said freight train had passed, and while he and his rig was still standing west of said tracks, and while defendant's said switch engine was approaching said crossing from the northwest unobserved by this plaintiff by reason of the obstruction aforesaid, and unheard by this plaintiff, defendant's said watchman or flagman, who was then and there in the employ of said defendant, and acting within the scope of his said employment, and standing at or near his said house or booth, and knowing of the approach of said switch engine, negligently, carelessly, and recklessly signaled with a flag, which he held in his hand, to this plaintiff, that there was no danger, and by waving the same from the west to the east a number of times signaled plaintiff, for him, the said plaintiff, to come upon said tracks and to cross over said crossing, although he, the said watchman, then and there well knew, or could have known, that said switch engine was at that time only a short distance away and approaching said crossing at a rapid rate of speed from the northwest, and that the same would cross said crossing, and plaintiff says that when the said defendant's said watchman gave him the signal as aforesaid, to cross as aforesaid, before doing so he looked and listened, and being unable to see or hear said switch engine, and seeing or hearing no danger, and relying upon said watchman and his signal as aforesaid, he drove his said horse and buggy upon said track, and attempted to cross over said crossing to the east in a careful and cautious manner.”

The second paragraph is essentially like the first, except that it has the additional averment charging failure to sound whistle or ring bell as engine approached this crossing.

These paragraphs are assailed upon the alleged ground that the facts averred do not show any duty resting upon appellant, to the appellee as a traveler upon the highway about to cross said tracks. If the facts averred do not show any legal duty owed by appellant to appellee as a traveler upon said highway about to cross the tracks of appellant, then the objection of appellant is well taken.

There is no statute requiring the placing of a watchman or flagman at highway crossings, and no ordinance of the city of Hartford City pleaded showing any such duty; therefore it becomes pertinent to inquire whether there is any such duty at common law, and, if so, when and under what circumstances.

In Broom's Legal Maxims (7th Ed.) p. 281, it is said:

“Every man is restricted against using his property to the prejudice of others; the principle embodied in the maxim, Sic utere tuo ut alienum non lædas, applies to the public in at least as full force as to individuals.”

On page 284 it is said:

“The operation being a hazardous one, the defendant was bound to see that it was carried out with reasonable care and skill.”

In the case of Ives v. Grand Trunk R. Co., 35 Fed. 176, tried in the Circuit Court of United States for Eastern District of Michigan, and which was a crossing case, the trial court charged:

“So if you find that because of the special circumstances existing in this case, such as that this was a crossing in the city much used and necessarily frequently presenting a point of danger, where several tracks run side by side, and there is consequent noise and confusion and increased danger; that owing to the near situation of houses, barns, fences, trees, bushes, or other natural obstructions which afforded less than ordinary opportunity for observation of an approaching train, and other like circumstances of a special nature, it was reasonable that the railroad company should...

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2 cases
  • Chesapeake & O. Ry. Co. v. Boston
    • United States
    • Indiana Supreme Court
    • 17 November 1948
  • Chesapeake & O. Ry. Co. v. Boston
    • United States
    • Indiana Supreme Court
    • 17 November 1948
    ... ... the right to find that the ordinance did not relieve the ... defendant of the duty to signal under the facts in this case ... Pittsburgh, etc., R. Co. v. Terrell, 1912, 177 Ind ... 447, 95 N.E. 1109, 42 L.R.A., N.S., 367. There was evidence ... in the record which would warrant a ... 125, 107 N.E. 486; ... Chicago, etc., R. Co. v. Biddinger, 1916, 63 ... Ind.App. 30, 113 N.E. 1027; Pittsburgh, etc., R. Co. v ... Tatman, 1920, 72 Ind.App. 519, 122 N.E. 357; ... Pittsburgh, etc., R. Co. v. Terrell, 1912, 177 Ind ... 447, 95 N.E. 1109, 42 L.R.A., N.S., ... [82 ... ...

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