The Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Gray

• Decision Date: 06 April 1897
• Docket Number: 17,966
• Parties: The Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Gray
• Court: Indiana Supreme Court

46 N.E. 675

148 Ind. 266

The Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Gray

No. 17,966

Supreme Court of Indiana

April 6, 1897

Rehearing Denied June 24, 1897.

From the Wayne Circuit Court.

Affirmed.

Elliott & Elliott and John T. Dye, for appellant.

Marsh & Jaqua, John S. Engle, M. G. Parry and Brown &amp Brown, for appellee.

Howard J. Monks, J., took no part in the decision of this case.

OPINION

Howard, J.

The appellee recovered damages in the sum of five thousand dollars for injuries alleged to have been caused by the negligence of appellant.

The first paragraph of the complaint alleges that the appellant was, on May 27, 1895, the owner and operator of a line of railway extending east and west through the city of Winchester, Indiana; that said line is crossed in said city by a line of railway of the Grand Rapids and Indiana Railroad Company, which runs north and south; that just north of the appellant's line, and west of the Grand Rapids line the appellant maintained a small wooden building about ten by eighteen feet, which is used as a telegraph and signal office, and that it kept an agent and telegraph operator in said building; that from said building, by a system of levers, the appellant also operated a system of targets and signals to notify its agents and servants when the said crossing was open for its trains to pass; that when a target was swung across the main track of either of said lines it meant that the crossing was not clear for the company across whose line the target was swung to pass. It is also alleged that said building was used as the office of the Western Union Telegraph Company, and persons were invited thereto for the purpose of receiving and sending messages and transacting business with said telegraph company.

The complaint then proceeds as follows:

"And plaintiff says that on the 27th day of May, 1895, the plaintiff, in company with one Albert F. Huddleston, was lawfully at said small wooden building for the purpose of transacting business with the said Western Union Telegraph Company, and for the purpose of procuring the said agent and servant and telegraph operator of the defendant so employed and engaged aforesaid, to send a message and telegram, and the plaintiff avers that while the plaintiff and said Huddleston were thereat and in said small wooden building aforesaid, as they had the lawful right to be, and before they had finished the transaction of said business, a freight train on said Grand Rapids and Indiana Railroad was occupying said crossing, and was standing on the main track of said Grand Rapids and Indiana Railroad across said railroad crossing, fully occupying the same; and while the target was closed against the defendant (indicating that the Grand Rapids and Indiana Railroad Company had the exclusive right to use and occupy said crossing) the engineer, agents, and servants of the defendant who had control of, and were running a locomotive and a freight train from the east to the west, on and over the defendant's railroad, did then and there carelessly and negligently and unlawfully run said locomotive so attached to said train of freight cars, upon and across the track of the said Grand Rapids and Indiana Railroad Company at said crossing while the said freight train on said Grand Rapids and Indiana Railroad was so occupying the crossing aforesaid, and before the same had passed over said crossing, and while the same was standing still on said crossing. And the plaintiff says that the engineer who had charge of said locomotive, and was running the same so attached to said freight train, in approaching said crossing from the east, aforesaid, going to the west, did unlawfully, carelessly and negligently run said locomotive and train of cars upon and across the said track of said Grand Rapids and Indiana Railroad Company without first coming to a full stop before running his said locomotive upon and over the same, and without first ascertaining that there was no other train or locomotive in sight approaching and about to pass over said track and crossing or occupying the same. That in so carelessly and negligently running said locomotive and train of cars upon and over said crossing in the manner aforesaid, and while said crossing was so occupied aforesaid, the said locomotive came in contact with said train of cars, and in contact with said car so standing on, over and across said crossing on the said Grand Rapids and Indiana Railroad with great force, and violently pushed the same sidewise and to the westward over and against the said small wooden building so located aforesaid, and occupied by the plaintiff in the manner aforesaid," etc., crushing the building and overwhelming appellee in the ruins and thus causing the injuries complained of.

A demurrer was overruled to this paragraph of the complaint, and this ruling is the first error assigned and discussed by counsel.

Because it is alleged in the complaint that appellant's train ran upon the crossing "without first coming to a full stop," counsel argue that it is thereby shown that the complaint is based upon section 2293, Burns' R. S. 1894 (2172, R. S. 1881), which section of the statute prescribes a penalty for so approaching a crossing without stopping and ascertaining that there is no other train or locomotive in sight, approaching and about to pass over such other track. And counsel say that if such is the theory of the complaint the pleading is insufficient for failing to allege, in the language of that statute, that each of the railroads is one "upon or over which passengers are or may be transported."

To this it may be answered, in the first place, that the allegations of negligence as to appellant's approach to the crossing are much broader than counsel indicate. Not only is the failure to stop alleged, but the general allegation is made that the appellant "did then and there carelessly and negligently and unlawfully run said locomotive so attached to said train of freight cars, upon and across the track of the said Grand Rapids and Indiana Railroad Company at said crossing while the said freight train on said Grand Rapids and Indiana Railroad was so occupying the crossing aforesaid, and before the same had passed over said crossing, and while the same was standing still on said crossing." Because the particular act of negligence prohibited by the statute is included in the sum total of negligent acts charged against appellant, it does not follow that the theory of the complaint is thereby confined and limited to the statutory offense charged. See Coulter v. Great Northern, etc., R. W. Co. (N. D.), 67 N.W. 1046; Chicago, etc., R. R. Co. v. Dillon, 123 Ill. 570, 15 N.E. 181.

Another reason urged against the sufficiency of the first paragraph of the complaint, is that "it does not allege that the crossing of the appellant's line and the Grand Rapids line was not provided with interlocking switches, or 'works or fixtures,' which excused the companies from stopping their trains at such crossings."

The basis of this contention is that, while the statute above cited requires trains before reaching the crossing of another road to come to a stop and look out for trains on the other road, yet that, by section 5156, Burns' R. S. 1894 (Acts 1883, p. 55), it is provided that where roads erect "a system of interlocking or automatic signals," rendering it safe for trains to pass over on either road without stopping, then the law as to stopping and looking out for trains at the intersection will not apply. In the case at bar there were no interlocking switches, and the complaint was drawn without reference to the statute relating to such switches. We do not think this was error, even if the charge were merely the violation of a statutory obligation, which, as we have seen, it was not. Where a breach of a statutory duty is alleged, and exceptions are found in the statutory declaration of duty, the pleader must show that the breach is not included in the exception. But if the exception is stated in a subsequent clause or section of the statute, or if it is declared in another statute, then such exception should be shown by way of defense to the action. Colson v. State, 7 Blackf. 590; Russell v. State, 50 Ind. 174. And if a complaint discloses a prima facie cause of action under a statute, it is for the defendant, by way of confession and avoidance or otherwise, to show that the plaintiff should not recover, notwithstanding the allegations of his complaint. W. U. Tel. Co. v. Scircle, 103 Ind. 227, 2 N.E. 604.

But the interpretation given by counsel to the statute under discussion could not be correct in any event. If two railroads provide interlocking switches so that it may be safe for the trains of each to pass over the common crossing without stopping, it is true that the statute makes it "lawful for the engines and trains of such railroad or railroads to pass over said crossing without stopping." The reason for that, however, is, that in case of such interlocking switches, when one train is upon the crossing the other cannot go upon it. The statute does not intend so absurd a thing as to authorize one train to run into another whenever there is an...