Southern Indiana Railway Co. v. McCarrell
| Decision Date | 24 May 1904 |
| Docket Number | 20,337 |
| Citation | 71 N.E. 156,163 Ind. 469 |
| Parties | Southern Indiana Railway Company v. McCarrell |
| Court | Indiana Supreme Court |
Rehearing Denied November 2, 1904.
From Orange Circuit Court; Thomas B. Buskirk, Judge.
Action by Charles McCarrell against the Southern Indiana Railway Company for damages for personal injuries. From a judgment for plaintiff rendered on a verdict for $ 3,500, the defendant appeals. Transferred from the Appellate Court under § 1337u Burns 1901.
Affirmed.
F. M Trissal, T. J. Brooks and W. F. Brooks, for appellant.
C. C Matson and Joseph Giles, for appellee.
This action is for personal injuries alleged to have been sustained by appellee because of the negligence of appellant in maintaining a highway crossing over appellant's railroad.
The facts shown by the record, and which are material to a decision of the cause, are these: In 1890 the company constructed its railroad at grade over and across the highway known as the Bedford & Bloomington road. At the point of intersection was a cut several feet deep. The crossing was put by the company in a safe condition for public travel, and was so maintained until the year 1893. At that time the board of commissioners of the county proceeded, under the free gravel road laws, to construct a turnpike on said highway. In building said turnpike the commissioners caused the said railroad grade crossing to be changed to an overhead crossing, and, without the express consent of the company, caused the erection of an overhead wooden bridge across appellant's railroad. It also made the necessary approaches thereto, about twenty feet high, for the accommodation and convenience of travelers. Since then the commissioners and other officers of the county charged with the care and maintenance of highways have assumed and exercised full control and management of said crossing and the approaches thereto. In 1898 the board of commissioners decided to replace said wooden bridge with an iron superstructure, and the railroad company, upon the solicitation of the commissioners, erected upon its right of way substantial stone abutments, eighteen feet high above its tracks, for the proposed iron bridge to rest upon. The iron bridge was built over and across appellant's railroad, upon the abutments so furnished, and the approaches thereto were so constructed and thereafter maintained by the road officers of the county and townships. No guardrail or other barrier was erected for the protection of travelers using such approaches. On February 7, 1902, appellee and another were driving in a sleigh across said bridge and railroad. When they had just passed off the bridge and onto the descending approach, the horse shied, and, because of the narrowness of the approach, and its want of protection by a guard or side-rail, threw sleigh and riders violently down the embankment, a distance of thirty feet, whereby appellee was injured. The negligence charged is the failure of appellant to maintain the crossing in a safe condition. Upon the issues joined there was a trial by jury, and a verdict and judgment for appellee.
The principal question for decision, and which arises upon divers assignments of error, may be stated thus: Under the circumstances stated, is the railroad company liable for the injury to the appellee? That the crossing had been in an unsafe condition for an unreasonable length of time is not controverted. The real question is whether appellant is responsible for it.
Appellant's contention is that a mode of crossing having been adopted by the company, as warranted by § 5172 Burns 1901, and the highway restored to and maintained in its former state of usefulness as a highway, an arbitrary change of the character of the crossing by the highway authorities of the county relieved the company from liability for injuries resulting from the defective manner in which such officers constructed and maintained the work. The argument is that as the county had the superior supervision and control of highways its voluntary exercise of the right to change the mode of crossing, and to construct and maintain it in a manner of its own choosing, released appellant from liability for mistakes and omissions of the highway officers in building and maintaining the approaches to such bridge. We are unable to perceive how a railroad company can relieve itself from responsibility for a defective and unsafe condition of such a highway crossing of its railroad. A railroad company takes its franchises and right of way subject to the condition that it will carry the public highways across its railroad in such a manner as not to interfere with the free use of the same, and as will afford security for life and property. § 5153 Burns 1901, subd. 5. It may carry the highway under or over the track, as appears most expedient to secure a free and safe passage. It may also change the location of the highway, and condemn land outside its right of way whenever necessary for the construction of such approaches as will preserve the reasonable safety and usefulness of the highway. § 5172, supra. The spirit that pervades all our legislation and decisions concerning such crossings invests railroad companies with ample power, and imposes upon them the imperative duty to provide, as far as they reasonably can, against increased inconvenience and danger to public travel in crossing their tracks. The company must not only construct but must keep the crossing and approaches in a safe and suitable condition for the use of travelers. Baltimore, etc., R. Co. v. State, ex rel. (1902), 159 Ind. 510, 65 N.E. 508; Chicago, etc., R. Co. v. State, ex rel. (1902), 158 Ind. 189, 63 N.E. 224; Lake Shore, etc., R. Co. v. McIntosh (1895), 140 Ind. 261, 38 N.E. 476; ...
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