Pittsburgh, C., C. & St. L. Ry. Co. v. Nichols, 10187.

• Decision Date: 05 April 1921
• Docket Number: No. 10187.,10187.
• Citation: 78 Ind.App. 361,130 N.E. 546
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. NICHOLS.
• Court: Indiana Appellate Court

78 Ind.App. 361

130 N.E. 546

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

v.NICHOLS.

No. 10187.

Appellate Court of Indiana, Division No. 2.

April 5, 1921.

Appeal from Circuit Court, Porter County; H. H. Loring, Judge.

Action by B. F. Nichols, administrator, against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.G. E. Ross, of Logansport, for appellant.

Otto J. Bruce, of Crown Point, and C. H. Pendleton, of Chicago, Ill., for appellee.

DAUSMAN, P. J.

This action was instituted by appellee against appellant to recover damages for the death of Dr. Joseph Ross Wilson. So much of the first paragraph of the amended complaint as is necessary to an understanding of the questions presented is as follows:

“That the defendant operates a line of railway from Chicago to Logansport; that the defendant's said line of railway crosses a public highway between the towns of Le Roy and Hebron; that the said railroad runs on an angle from the northwest to the southeast and crosses the said highway at an acute angle; that on the 12th day of February, 1916, and for a long time prior thereto, at the said highway in question, the defendant carelessly and negligently failed and omitted to maintain gates to warn travelers upon said highway of the approach of trains thereon; that the defendant on said date, and for a long time prior thereto carelessly and negligently failed to maintain any signal or warning device of any kind or description to warn travelers upon said highway of the approach of trains; that Joseph Ross Wilson was then and there traveling from the east, going west upon said public highway, and on that portion of the highway east of said railroad crossing; that said Joseph Ross Wilson was then and there traveling along slowly with due care and caution toward said railroad crossing; that the diagonal manner at which the defendant's railway crosses the said public highway causes the trains coming from the east to approach a person traveling west on said public highway from the left and rear of such traveler; that the view of a person traveling on said highway was also somewhat obstructed by trees and brush; that the said Joseph Ross Wilson with due care and caution on said day was crossing on and over the said railroad crossing; that said defendant then and there carelessly and negligently failed to operate any gates warning travelers of the approach of trains; that said defendant did then and there carelessly and negligently fail to operate any signal device warning travelers of the approach of said train; that said defendant did then and there carelessly and negligently operate a train going west on the south track, which was then and there the track used by east-bound trains; that the defendant has used the north track for west-bound trains and south track for east-bound trains for many years, which fact was then and there well known to the said Joseph Ross Wilson; that said action of said defendant company in then and there running its said train west on the south-bound track was without notice or warning of any kind to the said Joseph Ross Wilson; that said defendant did then and there carelessly and negligently run and operate its said train at a dangerous, reckless, and unusual rate of speed of from 60 to 70 miles per hour, and did then and there carelessly and negligently run and operate said train at said dangerous, reckless, and unusual rate of speed without any signal device, gates, or other means of warning travelers upon said public highway, and did then and there so operate said train as aforesaid without sounding a whistle or ringing a bell, or in any other manner warning persons traveling upon said highway of the approach of said train; that said defendant by said negligent means aforesaid did then and there carelessly and negligently run, operate, and propel its said train on, across, and over said highway crossing where said Joseph Ross Wilson was then and there traveling with due care and caution; that said defendant did then and there carelessly and negligently by the negligent means aforesaid run said train against said Joseph Ross Wilson, then and there killing him; that said killing resulted wholly from said negligence and carelessness of the defendant as aforesaid, and not otherwise; that the said Joseph Ross Wilson was a physician and surgeon residing and practicing his profession at Hebron, with a large and profitable practice of $4,000 a year; that he was 52 years of age; that he was a strong robust person in good health; that he left surviving him Ada Luella Wilson, his widow, dependent upon him for support; that said widow was and is damaged in the sum of $10,000.”

The second paragraph of complaint is the same as the first with the following additional averments:

“That the defendant saw the deceased as he was about to enter upon said crossing or ought to have seen the deceased when he was about to enter upon said crossing, but said defendant did then and there carelessly and negligently fail to slacken the speed of said train, and did then and there carelessly and negligently fail to take any precautions to avoid striking deceased; that, if said defendant had then and there exercised due care and caution when defendant first saw or ought to have seen the deceased as he was about to enter upon said crossing, defendant could have avoided any injury to deceased.”

The defendant moved the court to require each paragraph of complaint to be made more specific in 18 particulars, mainly “by alleging facts to show what duty the defendant owed to the decedent” with respect to each averment of negligence, and to show how the duty arose. The motions were overruled. The defendant then demurred to each paragraph for want of facts. The demurrers were overruled. Verdict and judgment for $3,500. The errors assigned and presented are the overruling (1) the motions to make more specific, (2) the demurrers, and (3) the motion for a new trial.

It appears from the first paragraph of complaint that the plaintiff relied on five acts of commission and omission as constituting negligence, and we will first consider the question of the sufficiency of the averment of each of them:

(1) “The defendant carelessly and negligently failed and omitted to maintain gates to warn travelers upon said highway of the approach of trains thereon.”

[1][2] Can it be said that the duty to maintain gates at that crossing rested upon the defendant? That question is one of law. 1 Thompson, Negligence, § 3; 6 Thompson, Negligence, § 7458, and authorities there cited; Hulse v. N. Y., etc., R. Co., 71 Hun (N. Y.) 40, 24 N. Y. Supp. 512;Purcell v. English, 86 Ind. 36, 44 Am. Rep. 255;Sisk v. Crump, 112 Ind. 504, 14 N. E. 381, 2 Am. St. Rep. 213;Faris v. Hoberg, 134 Ind. 269, 33 N. E. 1028, 39 Am. St. Rep. 261; 1 Thornton, Negligence, § 2, and authorities there cited. The only statutory requirement relating to highway crossings is the general “covenant of the charter contract” to construct the railroad upon or across the highway in such manner as to afford security for life and property, and to restore the highway “to its former state or in a sufficient manner not to unnecessarily impair” the usefulness or the franchises of the highway. Section 5195, cl. 5, and section 5249, Burns' Ann. St. 1914; Southern Ind. R. Co. v. McCarrell, 163 Ind. 469, 71 N. E. 156;Lake Shore, etc., R. Co., v. McIntosh, 140 Ind. 261, 38 N. E. 476;Chicago, etc., R. Co. v. State, 158 Ind. 189, 63 N. E. 224; Elliott, Railroads, § 1107, and authorities there cited. It is apparent, however, that said statute does not impose on railway companies the specific duty to erect and maintain gates at highway crossings. If, then, a duty rested on the defendant to maintain gates at the crossing designated in the complaint, it must have its origin in the common law.

[3][4] It is well settled that the common law does not impose on railway companies the specific duty to erect and maintain gates at any highway crossing. The common law does, however, impose on railway companies the general duty to exercise reasonable care and vigilance for the safety of travelers on the highways over and across which their railroads have been constructed; and generally it is a question of fact to be determined by the jury in a particular case whether that duty has been violated. But it is well settled also, as an independent and additional rule of law, that amenable negligence cannot be predicated on a failure to maintain gates at a highway crossing unless the particular crossing is peculiarly hazardous. Vallance v. Boston, etc., R. Co. (C. C.) 55 Fed. 364.

[5] Whether a particular crossing presents such a peculiarly hazardous condition as that the absence of gates constitutes a violation of the duty to use due care may ultimately become a question for the jury under proper instructions. P., C., C. & St. L. R. Co. v. Tatman, 122 N. E. 357;Delaware, etc., R. Co. v. Shelton, 55 N. J. Law, 342, 26 Atl. 937;Grand Trunk R. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485;Central Passenger R. Co. v. Kuhn, 86 Ky. 578, 6 S. W. 441, 9 Am. St. Rep. 309;Lehigh Valley R. Co. v. Brandtmaier, 113 Pa. 610, 6 Atl. 238;Philadelphia, etc., R. Co. v. Layer, 112 Pa. 414, 3 Atl. 874;Hubbard v. Boston, etc., R. Co., 162 Mass. 132, 38 N. E. 366; 2 Thompson, Negligence, § 1527.

[6] As a matter of pleading, however, the question is first for the court. The facts showing the conditions which exist at and surrounding the crossing must be averred in the complaint so that the court may determine, in the first instance, whether a jury can legitimately draw the conclusion therefrom that a situation of such unusual peril and risk to travelers on the highway existed as that the absence of gates was incompatible with the duty to exercise the care and diligence required by the law. To confer on juries the unrestrained authority to determine the...