Wabash Railroad Co. v. Dehart

• Decision Date: 06 November 1902
• Docket Number: 3,990
• Citation: 65 N.E. 192,32 Ind.App. 62
• Parties: WABASH RAILROAD COMPANY v. DEHART
• Court: Indiana Appellate Court

65 N.E. 192

32 Ind.App. 62

WABASH RAILROAD COMPANY v. DEHART

No. 3,990

Court of Appeals of Indiana

November 6, 1902

Rehearing denied January 14, 1903.

Transfer denied December 11, 1903.

From Warren Circuit Court; D. H. Chase, Special Judge.

Action by William M. DeHart against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

E. P Hammond, W. V. Stuart, D. W. Simms, W. H. Blodgett, James McCabe and E. F. McCabe, for appellant.

W. B. Durborow, for appellee.

OPINION

BLACK, J.

A demurrer to the complaint of the appellee against the appellant for want of sufficient facts was overruled. In the complaint it was alleged that the appellant is a corporation engaged in operating a line of railroad in and through Warren county in this State; that the tracks of the appellant and its right of way cross Monroe street in the town of Williamsport, in that county, at right angles, and this crossing is on the main-traveled thoroughfare of that town for vehicles and pedestrians; that it was and is the duty of the appellant to construct and keep the crossing in repair and at all times safe for the public travel; that on the southwesterly side of said Monroe street, and over the right of way of the appellant to the first track north, was constructed, for foot passage, a sidewalk of pine boards about eight feet long, and from four to six or eight inches wide, laid across stringers resting on the ground, similar in all respects to ordinary board sidewalks; that underneath said cross boards and beneath the stringers was a space in depth to the ground varying from six to twelve inches; that on, and for a long time, to wit, one month, prior to the 2d day of January, 1899, the appellant negligently suffered and permitted said sidewalk crossing on its right of way at the point above described to become worn, out of repair, rotten, dangerous, and unsafe for public travel over the same, so that the boards of said sidewalk, by reason of their age, and the action of the weather thereon, and public travel over the same, became worn thin, and were rotten and decayed and water-soaked, and would not bear the weight of pedestrians over the same; that on said day the appellee, as he had a right to do, in walking on and over said crossing, and not knowing the rotten and dangerous condition thereof, stepped on one of the boards, and the same, owing to its weak and rotten condition, broke under the weight of the appellee, and allowed his foot to go through, by reason whereof the appellee was thrown with great force and violence down upon his left hip and side to the ground and said sidewalk; that by reason of said fall his left hip joint was bruised, wrenched, and torn, etc.--the injury being described, and the consequent suffering, disability, and expense being stated--all to appellee's damage in a designated sum; wherefore, etc. A number of objections to this pleading are proposed on behalf of the appellant, which we will examine in their order.

It is contended that the complaint fails to show that the sidewalk in question was in the street; that the averment "that on the southwesterly side of said Monroe street, and over the right of way of defendant to the first track north, was constructed, for foot passage, a sidewalk," etc., shows that the sidewalk was not in or on any part of the street, but was on the appellant's right of way southwest of the street, and that therefore the appellant owed the appellee no duty. It may be agreed, as suggested by counsel, that no one would understand that a house or a fence alleged to have been constructed on the southwesterly side of a street was in the street, or occupied any part of it; but the inference which counsel seek to draw from this proposition, that such language applied to a sidewalk means that the way was outside of the street, is not a reasonable inference. The word "sidewalk" has a well-understood meaning. We understand ex vi termini that a part of the street is meant. It is the public way, generally somewhat raised, especially intended for pedestrians, and adapted to their use, usually constructed in this country as a part of a street at or along the side of the part thereof especially designed and constructed for the passage of vehicles and animals; there being often, if not generally, a gutter, also constituting a portion of the street, between such parts; and when a sidewalk is spoken of as being on a specific side of a designated street, it is to be understood to be a part so reserved of that street at or along the specific side of the roadway. See Elliott, Roads & Sts. (2d ed.), § 20; City of Evansville v. Worthington, 97 Ind. 282; Dooley v. Town of Sullivan, 112 Ind. 451, 453, 2 Am. St. 209, 14 N.E. 566; Town of Rosedale v. Ferguson, 3 Ind.App. 596, 30 N.E. 156; City of Frankfort v. Coleman, 19 Ind.App. 368, 65 Am. St. 412, 49 N.E. 474. It does not seem to be needed that much notice be taken of this objection.

It is next objected that there is no averment in the complaint that the appellant had notice of the defect in the sidewalk. The appellant was under legal obligation to maintain the crossing so as not to interfere with the free use thereof by the public, and in such manner as to afford security to life and property thereat. It was its duty to erect and maintain such structures as to make the crossing reasonably safe for persons lawfully and properly using the way. Such obligation and duty rested upon the railroad company by statute, and also without regard to any express statutory requirement. § 5153 Burns 1901, clause 5; § 5172a Burns 1901; Elliott, Roads & Sts. (2d ed.), § 779; Evansville, etc., R. Co. v. State, ex rel., 149 Ind. 276, 49 N.E. 2.

The appellant was bound to exercise ordinary care and diligence to discover and repair any insufficient portion of the crossing arising from the causes which rendered the crossing defective as alleged in the complaint. The complaint alleges that the appellant negligently suffered and permitted the sidewalk crossing to be out of repair, etc., for a long time, to wit, one month, before the day of the injury.

In Turner v. City of Indianapolis, 96 Ind. 51, it was said: "This complaint does not charge the defendant with placing the obstruction in the street, but with negligently suffering and permitting it to be and remain there. This would be a sufficient charge of negligence against a private corporation, such as a railroad company, etc., for the obstruction of a public highway in the use of its franchise." In seeking for reasons why the same rule as to notice should not be applied to private corporations as to municipal corporations, the court in that case adverts to the fact that the latter act in behalf of the public, while the former act for their own individual interests by the permission of the public, and that in the case of a railroad company it is presumed to be in continuous operation of business on the track by some of its officers or employes, and it is to be presumed to have at all times notice of any obstruction upon its track within the street or highway, etc., while the city's officers and agents are not constantly traversing its streets, and therefore the city has not the same facilities for knowledge, and it is not chargeable with notice, until it has been actually given, or a sufficient time to learn the facts has elapsed. In Town of Spiceland v. Alier, 98 Ind. 467, the distinction made in Turner v. City of Indianapolis, supra, between a city and a railroad company concerning the averment of notice, and the reason there assigned for the distinction, are referred to and quoted.

In Worster v. Forty-Second St., etc., R. Co., 50 N.Y. 203, the defect in the crossing which caused the injury to the plaintiff's horse was a hole into which the horse stepped. It was said that an omission on the part of the railroad company to know that such a defect existed was prima facie negligence, as much as an omission to repair after notice; that the plaintiff was only required to show that the injury resulted from the road being out of repair, and if circumstances existed showing absence of negligence, it was for the defendant to prove them; that in such cases notice to municipal corporations, express or implied, of defects or obstructions in the streets, is requisite to create a liability for damages for an injury produced by reason of them, "but the authority of these cases has no application here."

A railroad company rightfully thus occupying the public highway does so by express authority of law. If it does not restore the highway which it crosses in such manner as to comply substantially with the statutory requirement, the dangerous condition thus resulting will constitute a public nuisance, or there is negligence per se. It is its duty so to restore the highway that it will be as safe and convenient as it was before such use, except so far as it is necessarily rendered unsafe and inconvenient for the public by the lawful construction of the railroad. The liability for so making the crossing as to be dangerous to travelers by reason of failure to comply with the statutory requirement is not conditioned upon notice of that fact, it being a fact which the railroad company is bound to know.

In the case before us there is no averment of insufficiency or defectiveness in the sidewalk...