Revlett v. Louisville & N.R. Co.

• Decision Date: 02 December 1943
• Docket Number: No. 17108.,17108.
• Citation: 51 N.E.2d 95,114 Ind.App. 187
• Parties: REVLETT v. LOUISVILLE & N. R. CO.
• Court: Indiana Appellate Court

114 Ind.App. 187

51 N.E.2d 95

REVLETT

v.LOUISVILLE & N. R. CO.

No. 17108.

Appellate Court of Indiana, in Banc.

November 4, 1943.

Rehearing Denied December 2, 1943.

Appeal from Superior Court, Vanderburgh County; Robert Tracewell, Judge.

Action by Walter G. Revlett against Louisville & Nashville Railroad Company to recover for injuries sustained when automobile in which plaintiff was riding as a guest collided with defendant's train. The defendant's demurrer to plaintiff's complaint was sustained, and plaintiff appeals.

Reversed and remanded with instructions to overrule demurrer.John H. Jennings, of Evansville, for appellant.

Phelps F. Darby, of Evansville, for appellee.

ROYSE, Chief Judge.

Appellant brought this action to recover damages for personal injuries sustained when an automobile in which he was riding as a guest collided with a train passing over appellee's crossing at Cloverport, Ky.

The error assigned here is that the trial court erred in sustaining appellee's demurrer to the second paragraph of complaint. Appellee assigns as cross-error the overruling by the trial court of its motion to make said paragraph of complaint more specific.

The second paragraph of complaint, in substance, alleges that appellee, a common carrier, owned and operated a steam railroad line running through the town of Cloverport, Kentucky, and also extending to and passing through the county of Vanderburgh, Indiana; that on or about the 21st day of October, 1940, a certain public highway running north and south, very heavily traveled at all hours of the day and night, crossed another public highway running east and west within the corporate limits of the town of Cloverport, with the railroad tracks of appellee Company running along, over and upon this latter highway at the place where same crosses the highway running north and south, this crossing being commonly referred to as the Houston Street Railroad Crossing; that this crossing was located on a sharp, sudden, abrupt turn or bend in the highway, making the crossing extremely dangerous and hazardous; that because of said dangerous crossing appellee had maintained and operated for many years at said crossing an automatic electrically controlled gong or bell and an automatic electrically operated wig-wag red flashing light or signal, which gong and signal, upon the approach of a train within a few thousand feet of said crossing, could be heard and seen for several thousand feet in all directions and said gong would continue sounding until the train had completely passed over, across and beyond said crossing, and simultaneously while said gong was sounding said red-colored wig-wag signal light would flash constantly and continuously; that even on a dark foggy night said red flashing wig-wag signal was visible for several hundred feet when properly working.

Appellant further alleged that at about 4:00 A. M. on October 21, 1940, while an invited guest and without having any control over the automobile in which he was riding, the driver of said automobile proceeded toward said railroad crossing; that the night was extremely dark, but said driver and appellant were each familiar with said crossing and were particularly acquainted with the fact that there was stationed at the crossing said automatic gong and signal and that same had been maintained there for many years, but they were not familiar with the fact that same was out of repair and not working on this particular night; that as they approached the crossing they were each at all times keeping a lookout for said crossing and said signals and for any trains that might be approaching and passing over said crossing; that as they were beginning to go around the above mentioned curve or bend south of the crossing they ran into a heavy fog; that the driver of said automobile was driving in a careful and prudent manner and appellant was likewise at all times acting in a careful and prudent manner and said automobile approached said crossing at a moderate rate of speed, but because of the very unusual combination of circumstances herein set out neither he nor said driver were able to discover or see a line of freight cars passing over and upon said railroad tracks at said crossing in time to avoid striking same; that all of said cars were of a dark color with no light or signal of any kind and were not visible on said dark and foggy night and the engine of said train had passed beyond said crossing out of sight; that said automobile ran into said cut of cars and appellant sustained the injuries complained of for which judgment is demanded from appellee in the sum of $25,000.

It is further alleged that appellee was negligent and careless in permitting said automatic gong to get out of and remain out of repair so that said gong did not sound any alarm at said time, and that it was negligent and careless in permitting said wig-wag flashing signal to get out of and remain out of repair so...