Southern Indiana Railway Company v. Norman

• Decision Date: 09 June 1905
• Docket Number: 20,617
• Citation: 74 N.E. 896,165 Ind. 126
• Parties: Southern Indiana Railway Company v. Norman
• Court: Indiana Supreme Court

74 N.E. 896

165 Ind. 126

Southern Indiana Railway Company v. Norman

No. 20,617

Supreme Court of Indiana

June 9, 1905

From Lawrence Circuit Court; James B. Wilson, Judge.

Action by Elmer C. Norman against the Southern Indiana Railway Company. From a judgment on a verdict for $ 600, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Affirmed.

F. M Trissal and Brooks & Brooks, for appellant.

W. R Martin, W. H. Martin, R. R. Boruff and J. E. Boruff, for appellee.

OPINION

Monks, C. J.

This action was brought by appellee to recover damages for personal injuries alleged to have been caused by appellant's employes "negligently, carelessly and unlawfully placing a hand-car filled with tools, coats, dinner buckets and other objects and things of said employes," upon the public highway, within two feet of the traveled track thereof. Appellant's demurrer to the complaint for want of facts was overruled. A trial of said cause resulted in a verdict, and, over a motion for a new trial, a judgment in favor of appellee.

The errors assigned are: (1) The court erred in overruling the demurrer to the complaint; (2) the court erred in overruling the motion for a new trial.

It appears from the complaint that at a point about one-half mile north of Norman, a station along appellant's road, a public highway crosses said appellant's railroad track, and that for the purposes of said public highway appellant has built and maintained a crossing at grade; that after crossing said railroad track said highway intersects a road, traveled by the public, running for about one-half mile parallel with said railroad. It is alleged that "Said last-named road was used at will by the general public, and was plaintiff's route from his home, which is situated on the same, to the first-mentioned road at its point of intersection with said railway; that on the 17th day of July, 1903, the plaintiff was driving on said parallel road a pair of gentle, well-broken mules hitched to a cultivator; that on said day the servants and employes of defendant railway company were engaged in surfacing the roadbed of said railway, and had ridden on a hand-car to the point at which said railway intersected said first-mentioned road, and, upon reaching said crossing, said defendant, its servants and employes, carelessly, negligently and unlawfully removed said hand-car from the track of said railway, and ran same out upon the side of said first-mentioned roadway about fifty feet from said railway and about twenty-five feet from the point of intersection of said two roads, and with the inner wheels of said car within two feet of the wagon track of said roadway, there being at the time upon said hand-car the tools, coats, dinner buckets and other objects and things belonging to and in use by the men who so placed said car; that there was no other way for plaintiff to pass along said road except by said car, and that said road was hidden from plaintiff's view until plaintiff was within a few feet of same; that when driving along said road as aforesaid, and without any fault on his part, or negligence, and near said hand-car so negligently, carelessly and unlawfully placed by the defendant, its servants and employes as aforesaid, the team driven by plaintiff took fright at said car, and sprang to the opposite side of the road, striking the fence and throwing plaintiff from said cultivator, causing him to strike his head on a log by the side of the road, fracturing his skull and bruising his body, and causing him to be sick and sore and suffering much pain, both physical and mental; * * * that by reason of his said injury he is unable to do either physical or mental labor; that his said injury was all without fault or negligence on his part, but was caused solely by the careless, negligent and unlawful acts of the defendant as aforesaid, and not otherwise."

While said complaint can not be commended as a model, yet it appears therefrom that appellant negligently, carelessly and unlawfully placed said hand-car in the public highway within two feet of the wagon track, and by means thereof caused a team of gentle and well-broken mules attached to a cultivator on which appellee was riding, and which team of mules he was driving on a highway, to become frightened and run away, thereby throwing appellee from the cultivator and injuring him; that said injury was caused solely by the careless, negligent and unlawful acts of appellant as aforesaid, and not otherwise. Upon the authority of Ohio, etc., R. Co. v. Trowbridge (1890), 126 Ind. 391, 26 N.E. 64, Cleveland, etc., R. Co. v. Wynant (1889), 119 Ind. 539, 541, 20 N.E. 730, Cleveland, etc., R. Co. v. Wynant (1885), 100 Ind. 160, and Cleveland, etc., R. Co. v. Wynant (1887), 114 Ind. 525, 5 Am. St. 644, 17 N.E. 118, we hold the complaint sufficient to withstand the demurrer for want of facts. See Elliott, Roads and Sts. (2d ed.), p. 695; 3 Elliott, Railroads, p. 1988; Vars v. Grand Trunk R. Co. (1873), 23 Up. Can. C. P. 143; Brownell v. Troy, etc., R. Co. (1882), 55 Vt. 218; Denver, etc., R. Co. v. Robbins (1892), 2 Colo.App. 313, 30 P. 261; Patterson, Railway Accident Law, p. 152.

The court charged the jury in instruction five that "the placing of the hand-car by the side of said highway was prima facie unlawful." It was said in Ohio, etc., R. Co. v. Trowbridge, supra: "But a permanent or temporary occupancy of a highway by the cars of a railroad company is, prima facie, unlawful. It is, therefore, incumbent upon a railroad company which places a car upon a highway, to explain or excuse the act. The act of the appellant in placing the hand-car on the highway * * * calls for an explanation from the authors of the wrong." It is clear, therefore, that placing said hand-car on said highway was prima facie unlawful, and it was not error so to instruct the jury.

Appellant can not successfully complain of said instruction five because it spoke of placing the hand-car "by the side of" the highway instead of "on" or "in" the same, because the jury expressly find in answers to the interrogatories that said hand-car was "in the road" at the time appellee was injured, and that it was "on that part of the road traveled by the traveling public," and that "it was on the ground that had been and was used by the public in traveling over and on said road." What we have said in regard to the complaint and its sufficiency to withstand the demurrer...