Wabash Railroad Co. v. Railroad Commission of Indiana

• Decision Date: 30 June 1911
• Docket Number: 21,652
• Citation: 95 N.E. 673,176 Ind. 428
• Parties: Wabash Railroad Company v. Railroad Commission of Indiana
• Court: Indiana Supreme Court

95 N.E. 673

176 Ind. 428

Wabash Railroad Company v. Railroad Commission of Indiana

No. 21,652

Supreme Court of Indiana

June 30, 1911

Rehearing Denied November 3, 1911.

From Lagrange Circuit Court; James S. Dodge, Judge.

Suit by the Railroad Commission of Indiana against the Wabash Railroad Company. From a decree for plaintiff, defendant appeals.

Affirmed.

Stuart Hammond & Simms and Merritt & Duff, for appellant.

John W Hanan, Louis B. Ewbank and J. Frank Hanan, for appellee.

OPINION

Monks, J.

It appears from the record that appellee in 1909 investigated the grade crossing of appellant over the highway running north and south through the town of Topeka, Lagrange county, Indiana, and made an order recommending that appellant within ninety days commence and complete the work necessary to separate the grade of said railroad and the grade of said highway at said crossing, and that this separation be made by constructing said highway under the grade of said railroad, so that "an overhead clearance of at least fourteen feet shall be provided, and so that the roadway so constructed shall be fifteen feet on each side of the center thereof."

A copy of this order was served on appellant September 3, 1909. Appellant failed and refused to construct said crossing and to obey said order of appellee. On December 22, 1909, appellee commenced this suit to compel appellant to construct said highway crossing as requested in said order.

It appears from the complaint that appellant owns and controls a line of railroad extending from the city of Detroit, Michigan, to the city of Chicago, Illinois; that said line of railroad runs across Eden and Clear Spring townships in Lagrange county, Indiana, and through the village of Topeka, which lies partly in Eden township and partly in Clear Spring township.

It is alleged in the complaint, among other things, that plaintiff shows the court that defendant is now operating said line of railway, and is, and for a long time has been, engaged in running upon and over said railway through said village of Topeka a large number of trains every day; that it now runs and for a long time past has run, over its said railway, through said village of Topeka, twenty trains within every twenty-four hours; that under defendant's present schedule it operates over said road through said village five passenger-trains every day at a speed of from forty to sixty miles an hour, without stopping any of said trains at said village, and ten freight-trains at the rate of thirty miles an hour, without stopping any of said trains at said village. Plaintiff shows the court that upon and along the section line extending north and south between said section thirty-one, township thirty-six north, range nine east, and section thirty-six, township thirty-six north, range eight east, extending north and south through the said village of Topeka and across defendant's said railroad and right of way is a public highway, which is the main thoroughfare for travel between the cities of Lagrange and Ligonier, and for all of the surrounding country in passing from north of said railroad track to the village of Topeka and the town of Ligonier, and for all of the surrounding country south of said railroad track to the village of Topeka and the town of Lagrange; that such highway is used every day by travelers driving many teams and vehicles; that said highway constitutes the sole means of communication between the north part and the south part of the village of Topeka, and is the only street in said village that crosses defendant's railroad track; that said village of Topeka has a population of about seven hundred inhabitants of whom about five hundred fifty live north of said defendant's railroad track, and about one hundred fifty live south of said railroad track; that in said village, on the south side of said railroad track, are located a grist-mill which every year buys grain of the value of $ 5,000, and elevators, which every year buy and ship from said point grain of the value of $ 200,000; that said grain is hauled in from the surrounding country, and in order to reach said grist-mill and elevators the owners thereof are compelled to haul it across defendant's said railroad track; that in said village of Topeka are stockyards, from which there are shipped each year animals to the value of $ 125,000, which animals are brought in from the surrounding country by the owners thereof, and to reach the stockyards they must be hauled or driven along said highway across said railroad; that at said village there is located a creamery, which each year buys from the producers in the surrounding country cream and butter fat of the value of $ 40,000, all of which the producers are compelled to haul upon said highway across said railroad; that there is a coal and lumber yard at said village, which sells each year to consumers in the surrounding country coal and lumber of the value of $ 30,000, all of which the owners are compelled to haul upon said highway across said railroad track; that there is in said village a schoolhouse, at which there is a daily attendance of 200 children during eight months in each year, and that of these children more than one-third are compelled to pass along said highway across said railroad track to reach said schoolhouse and many of them live in the country at a distance from the schoolhouse, and are compelled twice each day to drive over said railroad crossing upon said highway in covered vehicles; that in said village of Topeka there is a library building containing a lecture parlor, in which are conducted a lyceum and lecture course, to which a large number of persons resort twenty-five times during each year, and they are compelled to cross said railroad track in the night, in passing to and from their respective homes; that said village contains a theatre and fifteen stores, which supply entertainment and merchandise for all the surrounding country, and are visited by a large number of persons every day, who are compelled to cross said railroad track on said highway in passing to and from their respective homes; that said crossing is used for travel upon said highway across said defendant's railroad more than five hundred times every day by persons who necessarily pass over said railroad in going from one part of the village of Topeka to another part thereof; that from said crossing to the next highway crossing over said railroad on the east is a distance of one mile; to the next highway crossing over said railroad on the west is a distance of one mile, and that in the entire distance of two miles between said crossings there is no other highway or means whatever by which persons north of defendant's railroad can pass to the south side thereof, or by which persons south of said railroad track can pass to the north thereof, except along said highway and over said crossing in said village of Topeka, on the aforesaid highway; that defendant's depot stands on the north side of said railroad track, 124 feet west of the center of said highway, and the depot platform extends for a distance of seventeen feet onto said highway; that defendant's switch yards are near said highway, to wit, 500 feet west of said crossing, and defendant's five daily trains, west bound, that stop at said town of Topeka, are stopped on said railroad in such a manner that they extend across said highway and obstruct travel thereon; that defendant at least once every day stops a local freight-train upon said crossing, and obstructs it from fifteen to thirty minutes; that defendant continuously obstructs many teams and wagons, together with their drivers, seeking to travel on said highway over said crossing; that defendant has neglected and refused, and now neglects and refuses, to restore said highway intersected by its road to its former state, or to such a sufficient degree that its usefulness would not be impaired, and to construct its road upon and across said highway in such manner as not to interfere with the free use thereof, and to afford security for life and property; that defendant has constructed and now maintains its said railroad and tracks in, upon and across said highway on an embankment ten feet above the level of said highway on either side; that it has constructed and now maintains a steep grade leading up from said highway on either side to the top of said embankment, and to the crossing over its said track; that said highway is sixty feet wide; that defendant has built and now maintains a crossing twenty feet wide over its said railroad, and an embankment and grade leading up thereto from either side; that the top of said embankment is higher than the eyes of a person riding in a wagon or buggy upon and along said highway, and so high that a person driving along said highway toward said crossing cannot see a traveler driving toward said crossing upon the highway from the opposite direction, until he has reached the top of said embankment, and by reason of such fact, and because of the narrow crossing, travelers frequently meet each other at the top of said embankment upon defendant's track in such a way that it is very difficult for their vehicles to pass, and they are compelled to stop and turn to one side and delay for a long time upon said railroad track; that the approaches and grades on said highway that lead to said crossings on either side of defendant's railroad track, are so steep that teams of horses drawing loaded wagons are liable to become stalled, and unable to pull the loaded wagons across said track, and are thereby compelled to stop for a long time upon said track; that the view of said crossing is obstructed by many buildings on each side of the railroad track near said highway; that defendant...