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

• Decision Date: 26 February 1907
• Docket Number: No. 5,553.,5,553.
• Citation: 80 N.E. 425,39 Ind.App. 515
• Court: Indiana Appellate Court
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. FERRELL.

39 Ind.App. 515

80 N.E. 425

PITTSBURGH, C., C. & ST. L. RY. CO.

v.FERRELL.

No. 5,553.

Appellate Court of Indiana.

Feb. 26, 1907.

On petition for rehearing. Petition overruled.

*425For former opinion, see 78 N. E. 988.

PER CURIAM.

Rehearing denied.

ROBY, P. J. (dissenting).

The disposition of this appeal is not of great moment to the parties immediately concerned, and no further attention would be given to it if the principles involved were not of unusual importance. Those principles are not abstractly open to dispute, but abstract principle in itself avails nothing. It becomes potent only when correctly applied to facts coming within its reason, and therefore the problem which tries the patience and challenges the efforts of the courts is and must always be found in the application of principle to fact. All persons are equal before the law, and the sure guaranty of every man's right lies in the protection of the right of every other man; and the first and highest concern of the state, and therefore of its law, is for the life and limb of its citizens, not only for their good, but for the good of the government which depends upon them.

Reference has been made during the discussion growing out of this petition for rehearing to “ancient cases dug up” for use in the dissenting opinion heretofore filed. The authorities therein cited speak for themselves. The writer believes that it is the duty of the courts to regard precedents. Broadly speaking, they are expressive of the law as it is and ought to be. Innovations, created by unwise statutes or unjust decisions, mark the exception, and not the rule. But, waiving the antique rules of the common law, let us consider, irrespective of precedent, historically and practically, the reason and sense of the situation. When the country was new, its population sparse, its forests uncut, and its streams unbridged, the construction of a railroad was a great and difficult undertaking. They were then, as they are now, *426necessities. The development of that locality which was so fortunate as to be penetrated by a railroad was assured. Money was not plentiful, and the public built the railroads. Taxes were levied, subsidies voted, contributions made, grading and excavating was done, gratuitously by farmers along the line. Public-spirited citizens guarantied the raising of stated amounts beyond the ability of the town to pay, and impoverished themselves in making good the guaranty; but the railroads were built, and the returns were so vast as that the foreclosures and reorganizations, by which stock and bonds issued to individuals and municipalities were wiped out, seemed of little importance. In this eager, hopeful, expanding day, the details of railroad construction and operation were crude. Parallel lines of iron rails reaching from Chicago to New York were the sole concern. They sprawled across the prairie, through the town, and into the city. Had they first been laid through a populous, compact, and wealthy state, great care would naturally have been exercised from the beginning. They would have been fenced and guarded. Overhead bridges and underground passageways would have been a first requisite. Railroads were not thus constructed in this country. Grade crossings were the rule, and the idea that any duty rested upon the company, except as tardy Legislatures declared it, was not entertained. The citizen or the officer who at that time did anything to delay the rapid completion of these great public highways became thereby “an enemy of the people.” Legislatures were imbued with the spirit. Terre Haute, etc., R. Co. v. State ex rel. Ketcham, 159 Ind. 438, 65 N. E. 401.

The courts were kind to such corporations in many ways. Columbus, etc., R. Co. v. Arnold, 31 Ind. 174, 99 Am. Dec. 615;New York, etc., R. Co. v. Perriguey, 138 Ind. 414, 34 N. E. 233, 37 N. E. 976;Terre Haute, etc., R. Co. v. Graham, 95 Ind. 286, on page 296 (last paragraph), 48 Am. Rep. 719. The doctrine of contributory negligence was speedily invoked to protect them from liability for damages on account of maiming or killing persons at highway crossings. For a long time such question was left to the jury, to be by it determined according to the standard of the conduct of a reasonably prudent man under the same or similar circumstances. O. & M. R. Co. v. Collarn, 73 Ind. 261, 270, 38 Am. Rep. 134. This standard was ultimately forsaken, and the courts prescribed the duty of a traveler exercising ordinary prudence. He must have looked and listened attentively both ways, and, if he could see, he was presumed to see, although he did not see, and, if he could not see, he was guilty of negligence for not getting out and going ahead until he could see, in the exercise of the “extraordinary care,” which was now enjoined upon him. Chicago, etc., R. Co. v. Thomas, 155 Ind. 634, 639, 58 N. E. 1040. The effect of the application of this doctrine was practically to exonerate the railroad company from liability, in actions based on negligence, because of casualities occurring at highway crossings. There has been a slight tendency recently to mitigate the severity of the holdings (Greenawaldt v. Lake Shore, etc., R. Co., 165 Ind. 219, 74 N. E. 1081); but in the main they are still enforced....