Rooker v. Lake Erie & Western Railroad Company
| Decision Date | 02 February 1917 |
| Docket Number | 9,438 |
| Citation | 114 N.E. 998,66 Ind.App. 521 |
| Parties | ROOKER ET AL v. LAKE ERIE AND WESTERN RAILROAD COMPANY ET AL |
| Court | Indiana Appellate Court |
Rehearing denied April 18, 1917. Transfer denied January 18 1918.
From Hamilton Circuit Court; James M. Purvis, Special Judge.
Action by William V. Rooker and others against the Lake Erie and Western Railroad Company and others. From a judgment for defendants, the plaintiffs appeal.
Affirmed.
W. V Rooker, for appellants.
Shirts & Fertig, Phil J. Fariss and John B. Cockrum, for appellees.
This is an appeal from a judgment rendered against appellants, William V. and Dora E. Rooker, in an action brought by them against appellees to recover damages for trespass upon their lands.
The issues of fact were tendered by a complaint in one paragraph and a general denial. The complaint alleges in substance that during the years 1913 and 1914, the appellees, in constructing a subway separating the grades of the Lake Erie and Western Railroad Company and the traveled way of the Indianapolis and Noblesville turnpike, a public highway, at a point one mile south of the city of Noblesville, in disregard of appellants' rights, entered upon their lands, and used and occupied the same for one year, and removed gravel, earth and other substances therefrom and piled thereon waste gravel, earth and material, and left and abandoned the same on said premises to appellants' damages in the sum of $ 150, payment for which has been demanded and refused.
Appellants' motion for new trial was overruled and this ruling is assigned as error in this court and relied on for reversal.
Said motion contains three grounds, the last two of which respectively challenge the decision of the court as not being sustained by the evidence, and as being contrary to law. The same questions are presented by each of said grounds and a disposition of them will dispose of the appeal. Appellants concede that there is no material conflict in the evidence.
The facts which gave rise to the litigation, as stated by appellants in their original brief, are as follows: "The Public Service Commission of Indiana, made an order in a cause pending before it: (1) for the abatement of a grade crossing, and (2) the construction of a subway at a point one mile south of Noblesville, where the tracks of the Lake Erie and Western Railroad Company cross the Noblesville and Indianapolis turnpike, sometimes called the Allisonville road.
The questions involved, and determined against appellants by the lower court, and here sought to be reviewed as stated by appellants' original brief are in substance as follows: (1) Whether the powers of the Public Service Commission with respect to grade crossings are sufficient to accomplish the vacation of a public highway without the aid of ancillary proceedings in some other tribunal. (2) Whether either the appellee railroad company or the board of commissioners could, "by resorting to the principle of independent contractor, absolve itself from liability for its duties with respect to public highway crossings."
It is contended by appellants that the trial court was of the opinion: "(1) That the acts complained of were the acts of an independent contractor for which neither the railroad company nor the county was responsible; (2) that the dirt being wasted largely upon 'the old road' it was not wasted upon the lands of the appellants in the absence of a showing that the old road, though it was entirely wiped out and destroyed, was not formally 'vacated' in a proceeding for that purpose; (3) that 'abandonment' of a public highway was not sufficient to perform the office of 'vacation' of a highway; and (4) that the authority of the Public Service Commission in effacing dangerous grade crossings of railroads and highways was not sufficient to admit the destroyed highway to revert to the abutting lands in the absence of a special ancillary proceeding for that purpose as provided by law for highway vacations generally. "
Appellants insist that this view of the law, so taken by the trial court, was erroneous, because: (1) A highway being only an easement, or right to travel, an abandonment, when complete, effected a reverter of the part abandoned, and that formal proceedings to vacate were unnecessary, that the Public Service Commission was, in any event, clothed with ample power to vacate in such cases, and that the consummation of its order separating the grades and locating and defining the subway, was in effect a vacation of the former grade crossing, in so far as the subway departed from such original grade crossing. (2) That the duty of a railroad company to make all necessary provisions with respect to highway crossings is a charter duty imposed by the general assembly in the exercise of the police power of the State, and is therefore such a duty as is not susceptible of delegation by the railroad company to an independent contractor.
As preliminary to a disposition of these questions, it should be stated that this appeal was taken to the Supreme Court, and the transcript of the record was filed in that court; that since the filing of appellants' original briefs, appellees filed their petition asking the transfer of said cause to this court, under § 1397 Burns 1914, Acts 1901 p. 568. This petition was granted and the case transferred to this court. It is now insisted by appellants that the Supreme Court has exclusive jurisdiction in all cases concerning highways, and that appellees, by filing said petition to transfer, in effect conceded that no highway question was involved, and hence that the land on which the trespass involved was committed is appellants' land, and that they have therefore waived the first question above suggested.
We think appellant is in error in this contention but, in any event, the conclusion which we have reached affecting the second question, supra, makes it unnecessary to consider the first.
The construction of the subway in question was let to another contractor. The work was one which appellees, or either of them, might legally let to such contractor. The trespass for which appellants seek damages was committed by those in charge of such work, and the damage sought to be recovered is for a trespass on appellants' land, a thing wholly unnecessary to the performance of such work.
Generally speaking, the contractee "is not responsible for the acts of an independent contractor, to whom he has let a particular work or job where he reserves to himself no control over the same except the right to see that it conforms to a particular standard." Staldter v. City of Huntington (1899), 153 Ind. 354, 362, 55 N.E. 88; Wabash, etc., R. Co. v. Farver (1887), 111 Ind. 195, 12 N.E. 296, 60 Am. Rep. 696; City of Bloomington v. Wilson (1895), 14 Ind.App. 476, 43 N.E. 37; Vincennes Water Supply Co. v. White (1890), 124 Ind. 376, 24 N.E. 747; St. Louis, etc., R. Co. v. Gillihan (1906), 77 Ark. 551, 92 S.W. 793; Waltemeyer v. Wisconsin, etc., R. Co. (1887), 71 Iowa 626, 33 N.W. 140; New Orleans, etc., R. Co. v. Reese (1884), 61 Miss. 581; Louisville R. Co. v. Wiggington (1913), 156 Ky. 400, 161 S.W. 209; Runians v. Keller, etc., Co. (1911), 141 Ky. 827, 133 S.W. 960; King v. New York, etc., R. Co. (1876), 66 N.Y. 181, 23 Am. Rep. 37; Marion Shoe Co. v. Eppley (1913), 181 Ind. 219, 104 N.E. 65, Ann. Cas. 1916D 220.
However, it is insisted by appellants, in effect, that the doctrine of independent contractor has no application in this case because the work which was here attempted to be turned over to such contractor was a work which the law required appellees to perform, and that the duties and obligations connected therewith with were implied covenants of the railroad company's charter, which such company could not lay aside or cast upon the shoulders of another.
The general proposition involved in appellants' contention is correct; that is to say, a railroad company cannot, by any form of contract, relieve itself from a duty to the public imposed by its charter, without the consent of the state. Southern Ind. R. Co. v. McCarrell (1904), 163 Ind. 469, 473, 71 N.E. 156; Braslin v. Somerville Horse R. Co. (1887), 145 Mass. 64, 67, 13 N.E. 65, and cases cited; Chicago, etc., R. Co. v. McCarthy (1858), 20 Ill. 385, 71 Am. Dec....
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