The Louisville, Evansville and St. Louis Consolidated Railroad Co. v. Pritchard
| Decision Date | 12 May 1892 |
| Docket Number | 15,795 |
| Citation | 31 N.E. 358,131 Ind. 564 |
| Parties | The Louisville, Evansville and St. Louis Consolidated Railroad Company v. Pritchard, by Next Friend |
| Court | Indiana Supreme Court |
From the Crawford Circuit Court.
Judgment affirmed with costs.
N. R Peckinpaugh and J. H. Weathers, for appellant.
R. J Tracewell, C. L. Jewett and H. E. Jewett, for appellee.
This action is brought by the appellee against the appellant for damages resulting to appellee by reason of an injury sustained on account of the negligence of the appellant in permitting their railroad and track to remain out of repair and out of grade at a highway or street crossing. It is alleged in the complaint that in constructing the railroad it was constructed at a grade fifteen feet higher than the grade of the highway, and the crossing was arranged so that there was a sharp and steep elevation and approach to the track on either side of the railroad, and that on either side of the railroad there was a drop from the top of the track to the top of the grade of the street or highway of some fifteen or eighteen inches, so that in crossing the track on said highway there was a sudden rise or jog of fifteen inches to pass over, and a sudden jog or drop of the same distance on going off the railroad track; that by reason of this sudden drop the appellee, Lota Pritchard, was thrown from the two-horse spring wagon in which she was riding, at the time she was driving across said track, and very seriously injured.
The first question presented relates to the sufficiency of the complaint. It is contended by the appellant that it is not sufficient for the reason that it appears from the averments that the appellee was an infant, and that she was driving the two-horse team, and prima facie it is negligence for an infant to drive a two-horse team, and, therefore, it shows the appellee to have been guilty of contributory negligence, and the demurrer ought to have been sustained to the complaint. Appellant cites no authority in support of this theory, and we do not think it a proper rule to adopt. The complaint does not state the age of the appellee. For aught that appears in the complaint, she may have been over twenty years of age at the time of the injury. It is alleged that she was without fault or negligence.
There are no averments in the complaint to show that she was guilty of contributory negligence. The fact that she was an infant and was driving the horses does not of itself establish contributory negligence. There was no error in overruling the demurrer to the complaint.
It was the duty of the appellant, upon building its railroad across the highway, to restore the highway as nearly as possible to its previous condition, and failing to do so, it was liable for damages sustained on account of injuries received by reason of the unsafe condition in which it was left, provided the injured party used care commensurate with the apparent danger. And as to whether due care was used or not is a question of fact for the jury. The complaint at least contains proper averments. Indianapolis, etc., R. R. Co. v. State, ex rel., 37 Ind. 489; Indianapolis, etc., R. R. Co. v. Stout, 53 Ind. 143; Evansville, etc., R. R. Co. v. Crist, 116 Ind. 446, 19 N.E. 310; Evansville, etc., R. R. Co. v. Carvener, 113 Ind. 51, 14 N.E. 738.
It is urged that the evidence is not sufficient to sustain the verdict, and it is...
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Louisville v. Pritchard
... ... by Lota Pritchard, by her next friend, against the Louisville, Evansville & St. Louis Railroad Company. Plaintiff had judgment, and defendant ... ...