OPINION
ROSS, J.
The
appellee sued the appellant to recover damages for the death
of one Jesse Davis, who was killed while crossing
appellant's track, being struck by one of its passenger
trains.
There
were three paragraphs of the complaint, each of which was
held good on demurrer. The appellant answered by a general
denial, but before going
to trial the appellee dismissed as to the first paragraph of
his complaint. Upon the trial there was a verdict for the
appellee in the sum of $ 1,000, upon which the court rendered
judgment.
The
first errors assigned in this court call in question the
sufficiency of the facts alleged in the second and third
paragraphs of the complaint to state a cause of action. The
substance of the second paragraph is as follows: "That
said line of railway passes through and across the
incorporated town of Jonesville, in said county and State;
that on the 18th day of March, 1892, and for many years prior
thereto, the defendant, in addition to said main line of
railway running through and across the town of Jonesville,
controlled, owned, and maintained, and now owns, controls,
and maintains a switch track on the west side thereof,
running parallel with said main track, a distance of -- feet
away; that said line of railroad and said switch track
adjacent thereto run through said town of Jonesville in a
north and south direction; that the
defendant company, on said day, and for many years prior
thereto, owned, controlled, and maintained, and now owns,
controls, and maintains a passenger depot, and platform
adjacent thereto, at said town of Jonesville; that said depot
platform is situated adjacent to said railroad, on the east
side thereof, about midway between the north and south
boundaries of said town; that said main track of railroad
from said depot southward for a distance of one hundred and
fifty yards, and within the corporation of said town of
Jonesville, was, on the 18th day of March, 1892, and for many
years prior thereto, in general and constant and habitual use
as a public highway for foot passengers going to and from
said depot, and that said usage had at all times been
known and acquiesced in by the defendant; that by reason of
such general, constant, and habitual use of said part of said
railroad track as a public highway for foot passengers
going to and from said depot, and that such usage
had at all times been known and acquiesced in by the
defendant, the public was on said day, and for many years
prior thereto, licensed to use said part of said railroad as
such highway by defendant company; that on the 18th day of
March, at -- minutes past nine o'clock in the forenoon, a
gravel train, controlled, owned and operated by defendant,
was standing on the aforesaid switch track. The engine of
said gravel train facing southward was standing about
sixty-five yards south of said depot platform, and was in
charge of servants in the employ of defendant; that at said
time one Jesse Davis was walking northward along and over the
center of defendant's said main line of railroad about
sixty-five yards south of said depot platform; that said
Jesse Davis was rightfully and lawfully a footman at said
point on said railroad by reason of the aforesaid license
from defendant company; that while said Davis was walking on
said track facing northward as aforesaid,
the regular passenger train from the south, consisting of a
locomotive, a baggage car and three coaches, and controlled
by defendant's servants, came towards said Davis, and
within 300 yards of said Davis the engineer of said passenger
train saw said Davis walking on said track, as aforesaid, and
blew the whistle, and blew it several times, but the escaping
steam and noise of the engine of the aforesaid gravel train
standing on said switch track as aforesaid, was making so
much noise that said Davis was prevented from hearing said
whistle by said passenger train engineer; that the said
engineer of said passenger train, with the use of ordinary
care, might have seen, and did see, the gravel train engine
on the side track as aforesaid, and that the said passenger
train engineer, with the use of ordinary care, might have
known, and did know, that said Davis did not hear, and could
not have heard, the whistling and danger signals of said
passenger train engineer; that said Jesse Davis, not knowing
of said train approaching from behind, continued to walk on
the track as aforesaid, and defendant's servants, with a
reckless disregard of consequences, failed and refused to
slow up said train, and with a reckless disregard of
consequences, wantonly and recklessly and willfully run its
engine, or locomotive, over, upon, and against the said Jesse
Davis, and the said Jesse Davis was then, there and thereby
killed, and all without any fault whatever on the part of
said Jesse Davis."
And the
third paragraph is as follows: "For third and additional
paragraph of complaint, the plaintiff, Daniel Judd
administrator of the estate of Jesse Davis, deceased,
complains of the defendant, the Pittsburgh, Cincinnati,
Chicago and St. Louis Railway Company, and says that the
defendant is a corporation duly organized under the laws of
the State of Indiana, and doing business
under the laws of the State of Indiana; that said defendant
controls, owns, and operates a line of railway extending from
Indianapolis, in Marion county, to Jeffersonville, in the
county of Clark, in said State, and passing through the
county of Bartholomew, in said State; that said line of
railroad passes through and across the incorporated town of
Jonesville, in said county and State; that on the 18th day of
March, 1892, and for many years prior thereto, the defendant,
in addition to its said main line of railroad running through
and across the town of Jonesville, controlled, owned, and
maintained, and now owns, controls, and maintains a switch on
the west side thereof, at a distance of feet away; that said
line of railroad, and said switch track adjacent thereto, run
through said town of Jonesville...
