OPINION
BLACK, J.
The
appellant sued the appellee, the action being based upon the
provisions of section 5153, Burns' R. S. 1894 (3903,
Horner's R.S. 1896), that every railroad corporation
shall possess powers, and be subject to liabilities and
restrictions, "to construct its road upon or across any
stream of water, water course, road, highway, railroad or
canal, so as not to interfere with the free use of the same,
which the route of its road shall intersect, in such manner
as to afford security for life and property; but the
corporation shall restore the stream or water course, road or
highway, thus intersected, to its former state, or in a
sufficient manner not to unnecessarily impair its usefulness
or injure its franchises."
The
facts upon which judgment in favor of the appellee was based,
were set forth in a special verdict.
In the
first paragraph, the verdict stated the incorporation of the
appellee, and its possession, management, operation, and
control of a certain line of steam railway,
and its exclusive possession, care, custody, control, and
management of the roadbed, machinery, and other appliances
used in operating said line of railway, from December 1,
1879, to March 1, 1892. In the second paragraph it is stated
that a certain railroad company in 1874 built an embankment
about seven feet high and thirty-four feet wide at the base,
and seventeen feet wide at the top, and constructed a
railroad thereon, running across a public highway in Eel
township in Cass county, Indiana, known as the Logansport and
Georgetown road, running in an easterly and westerly
direction, immediately along the north bank of the Wabash
river; that said railroad crossed said highway practically at
right angles to the line of said highway, at a point on or
near the east boundary line of a certain farm then and still
owned and occupied by the appellant, and situated on the
north bank of the Wabash river, in said township, and lying
west of the city of Logansport about one-half mile; that at
the time said railroad was built said railroad company
constructed approaches on the east and west side of said
railroad embankment, so that travelers on said highway could
cross said railroad, and said approaches so constructed
remained in substantially the same condition, and were used
for the purpose for which they were made until about the year
1889.
The
special verdict proceeds as follows: "3. That in the
year 1889, the Wabash river had washed away a portion of the
earth between said highway and the river, immediately west of
said railroad, and to protect said highway and avoid moving
it further north in the direction of plaintiff's house
and upon his land, the board of commissioners of Cass county
and the trustee of Eel township, upon the petition of the
plaintiff and said trustee, by agreement,
constructed a retaining wall along the bank of said river,
beginning at the abutment of the railroad bridge across the
Wabash river, on the defendant's right of way, and
extending down said river and along the highway more than one
hundred and fifty feet; and at the time said wall was built,
and in connection with that work, the defendant railroad
company placed along its right of way from the north end of
the bridge across the river to the north side of said
highway, thirty-seven carloads of gravel and earth, and four
of boulders; which said materials were arranged and spread by
William Hupp, the then acting supervisor of the road district
in which said highway was situated, acting as such
supervisor, assisted by one of his men and certain employes
of the railroad company, the work of spreading and placing
the same being under the direction of said supervisor. The
greater part of said material was thrown on the west side of
said railroad track, and was spread over the defendant's
right of way from the abutment wall to and upon the traveled
part of the highway, and as far west as the west line of the
railroad company's right of way; but the defendant
company never did any work on the approach to said crossing
west of the west line of the right of way, except as small
portions of the material so spread extended beyond said line;
that the general surface of the said highway was not upon an
elevated grade until after said railroad was built, but after
said approaches were originally constructed, as aforesaid,
that portion of said highway lying west of said railway
crossing was graded by the highway authorities of Eel
township from the point where said approach on the west side
of said railroad began, and said graded portion connected
with said approach so as to make the general elevation of
that portion of the highway nearer that of
the railroad that [than] when said railroad was first
constructed; in the years 1890 and 1891, James McMillen, the
then acting road supervisor in said district, caused gravel
to be placed on the west side thereof, on two different
occasions, beginning said work west of the west end of said
approach and extending the same to a point six feet west of
the west rail of said railroad; that a portion of this work
was done by the plaintiff while working out his road tax,
said plaintiff being permitted, at his own request, to do
said work at that place by said supervisor; and in addition
to such work said plaintiff put some gravel on said highway
within the limits of the defendant's right of way
voluntarily and at his own expense, and according to his own
ideas, and without the supervision or direction of anybody
during this latter work, in the year 1891.
"5.
That said plaintiff, of his own motion, as aforesaid, placed
gravel on said approach from a point about six feet west of
the west rail of said railroad to a point some ten feet
west thereof, and spread and placed the same as he saw fit,
and so left the surface of said highway at said point that
there was a slight elevation or ridge near the center of the
traveled portion thereon, and south of said ridge a slight
inclination toward the river and south side of said highway,
at the point where he so placed said gravel, and said
inclination toward the south increased slightly further west,
and was greater at a point about forty feet west of said west
rail of said railroad than where plaintiff so placed said
gravel. And the road supervisor then in office in said road
district saw said work after it was done, and made no
objection thereto, and the surface of the highway upon said
approach remained as it was so made, on the 12th day of
February, 1892, and was reasonably safe for travelers thereon
exercising ordinary care and diligence,
when not covered with snow and ice.
"6.
That the plaintiff, Frederick Seybold, from 1874,
continuously up to the 12th day of February, 1892, was well
acquainted with all the conditions of said highway, with
respect to the width, length, steepness of grade, slope of
sides, and all other conditions, and at the time of his
alleged injury, as well as for more than ten years
continuously prior thereto, resided on his farm with his
family within three hundred feet of said crossing, and during
all of said years passed over said highway frequently with
his wagon and team and other vehicles, and on said 12th day
of February, 1892, as well as for more than ten years prior
thereto, was well acquainted with and knew all dangers
attendant upon the use of said highway crossing.
"7.
That on the 12th day of February, 1892, the plaintiff left
his house in the afternoon, and drove to a farm owned by him
about four miles from his residence; that in the course of
his journey he passed over the crossing of the
defendant's railroad track on the Logansport and
Georgetown road, and, having obtained a load of wood, started
to return home; that he was driving two horses attached to a
farm wagon, one of said horses being six years old and the
other five, and the team was free to go. The wagon had tires
on the wheels three inches wide, which were old and worn
smooth and the edges rounded off; the wagon also had a lock
for putting a brake on the rear wheels. Driving this team and
wagon, plaintiff, on his return home, approached the railroad
crossing mentioned, from the east, and crossed the track of
the railroad, substantially at right angles. He had no
difficulty in ascending the approach to the railroad, or in
crossing the tracks, which were substantially on a level with the highway; that immediately on the west
side of said railroad track the surface of the highway was
practically level and about fifteen feet wide, and the
surface of the traveled portion of said highway west of said
railroad track and on the defendant's right of way had a
slight ridge in the middle between the tracks where wheels
ordinarily run, which ridge began about six feet from the
west side of said railroad track; the surface of the traveled
portion of said highway upon the defendant's right of
way, after getting some six feet from the west side of the
defendant's track, had a slight inclination toward the
south, being in the direction of the Wabash river. After
leaving defendant's right of way, and immediately to the
westward of it, the traveled portion of said highway became
slightly narrower than it was upon the right of way itself
and the inclination of its surface towards the south was
slightly increased. On the day mentioned, when plaintiff was
returning as stated, he passed safely over the...
