OPINION
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.
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 sidetracks 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 employees
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 was 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 obstructions 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, signalled 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 signalled 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 7
Broom, Legal Maxims (7th ed.) 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 laedas, 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. (1887)
35 F. 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 provide special safeguards to persons
using the crossing in a prudent and cautious manner, the law authorizes you to infer negligence on its
part for any failure to adopt such safeguards as would have
given warning, although you have such a statute in Michigan
which undertakes by...