Watson v. Brady

• Decision Date: 29 December 1932
• Docket Number: 26,179
• Citation: 185 N.E. 516,205 Ind. 1
• Parties: Watson v. Brady
• Court: Indiana Supreme Court

185 N.E. 516

205 Ind. 1

Watson v. Brady

No. 26,179

Supreme Court of Indiana

December 29, 1932

Rehearing Denied as Modified May 16, 1933.

1. RAILROADS---Interurban Railroads---Distinction.---The term "railroad" includes electric interurban railroads there being no distinction when the interurban railroad is operated over its own private right of way or outside the traveled portion of a public highway. p. 4.

2. RAILROADS---Interurban Railroads---Action for Damages---Statute.---The statute providing for action for injury to persons or property upon railroads (327, Burns Supp. 1929) applies to interurban railroads operating on a private right of way between cities. p. 4.

3. DEATH---Action for Causing Death---Railroads---Statute.---327, Burns Supp. 1929 providing for action against railroads for personal injuries is applicable where the injury results in death. p. 6.

4. VENUE---Change by Agreement---Waiver of Objections.---Where a venue of an action, brought in the proper county, is changed to another by agreement, any objections to the jurisdiction of the latter county are waived. p. 7.

5. RAILROADS---Receivers---Action for Injury---Consent of Court.---327, Burns Supp. 1929, providing for action against railroads for personal injury, expressly provides that such action may be brought against a receiver without the consent of the court appointing the receiver. p. 7.

6. RAILROADS---Action for Personal Injury---Complaint---Proximate Cause.---In a complaint against an interurban railroad for death resulting from alleged negligence in failure to provide a proper headlight and failure to sound a whistle, an allegation that "by reason of those negligent acts said defendant negligently ran its car against said trailer, thereby killing said Watson" was held sufficient to imply the averment that such negligence was the proximate cause of the injury and that, if the proper headlight had been provided and proper whistle blown, the injury would not have occurred. p. 8.

7. PLEADING---Complaint---Sufficiency---Implied Averments.---In construing a complaint where a demurrer is interposed it will be deemed sufficient whenever the necessary allegations can be fairly gathered from all the averments, and facts impliedly averred will be given the same force as if directly stated. p. 8.

8. RAILROADS---Crossing Signal---Duty to Install.---If a signal at a crossing is reasonably necessary to warn travelers so that they may avoid danger, then such a reasonable signal must be given even though not required by statute or ordinance. p. 9.

9. RAILROADS---Crossing Signals---Hazardous Crossing---Negligence.---In an action against an interurban railroad for injuries, based upon negligence in failure to provide proper warning signals at a hazardous crossing, it was held proper to allege and prove that such crossing was a multiple crossing including the tracks of another railroad company, heavy automobile traffic of the highway, its proximity to a large city, weeds and other obstructions to view, confusing lights of nearby buildings, etc., to determine whether defendant's operation of its car, under the attending circumstances, was negligent. p. 11.

10. RAILROADS---Hazardous Crossing---Failure to Maintain Signals---Actionable Negligence.---Actionable negligence may be alleged against a railroad company which operates a car or train at a very high rate of speed over a crossing that is so hazardous by reason of the topography and congested traffic that some special warning signal is reasonably necessary, not only with regard to the speed of the train, but also in the manner of operating the train under the conditions surrounding the particular crossing by reason of its failure to install a proper warning signal. p. 11.

11. RAILROADS---Crossing Signals---Duty to Maintain.---It is the duty of a railroad company to exercise ordinary care at a crossing by adopting a reasonably safe and effective mode, commensurate with the danger at the particular crossing, of warning travelers of the approach of trains, but such duty does not require the maintenance of flashing signals or similar warnings at all ordinary crossings in the county where there is no unusual danger or extraordinary hazards. p. 11.

From Shelby Circuit Court; James E. Emmert, Judge.

Action by Olive E. Watson, administratrix of the estate of John George Watson, deceased, against Arthur W. Brady, receiver for the Union Traction of Indiana. From a judgment for defendant on demurrer to the complaint, plaintiff appealed. Transferred from the Appellate Court (No. 14,349) under § 1351 Burns 1926 (from judges not concurring).

Reversed.

Othniel Hitch and Williams & Pell, for appellant.

J. A. Van Osdol, Ralph K. Kane, Gideon W. Blain, and Robert Hallowell, Jr., for appellee.

Matson, Ross, McCord & Clifford, Adolph Schreiber, and Harry T. Ice, amici curiae.

Hughes J. Martin, J.

OPINION

Hughes, J.

This is an action by Olive E. Watson, as administratrix, against the receiver for the Union Traction Company of Indiana, to recover damages for the death of John George Watson, which resulted from a collision between an electric interurban railroad car and an automobile truck trailer in which Watson was riding, on October 14, 1927, near Indianapolis. This collision was generally known as the "Grotto wreck," and in it twenty persons lost their lives. The complaint alleges that the decedent left surviving him, his widow and three sons, ages 8, 7, and 5 years respectively, and that they have been damaged in the sum of $ 10,000.

The complaint is in one paragraph, to which the court sustained a demurrer on the ground that sufficient facts were not alleged. Upon refusal of the plaintiff to plead further, judgment was rendered for the defendant, appellee herein. The plaintiff appealed, assigning as error the action of the court in sustaining the demurrer.

The appellant brought the action in the Superior Court of Marion County, from which court it was later sent to the Shelby (County) Circuit Court upon a change of venue, without first obtaining the consent of the Madison (County) Circuit Court, which court had appointed the defendant receiver. She did this pursuant to the following provisions of ch. 47, Acts 1929, p. 461, § 327, Burns Supp. 1929:

"An action against a railroad or canal corporation or company . . . for an injury to person or property upon the railroad . . . may be brought in any county through or into which such railroad . . . passes; and an action may be commenced against a receiver without obtaining the consent of the court appointing such receiver; and the summons may be served in any county in the state."

The appellee, in support of the ruling of the trial court, contends that neither the Marion nor the Shelby County Court obtained jurisdiction in the case, for the reason that such statute does not apply to an action against an electric interurban railroad, but applies only to actions against steam railroads. ^[1]

"Technically a railroad is a way or road upon which iron rails are laid for wheels to run on, for the convenience of heavy loads and vehicles. . . . The term 'railroad' as employed in our general legislation relates to the institutions of a quasi public character, to highways or roads constructed by authority of the state, with fixed metallic rails upon which public carriers may propel their carriages or cars speedily in the transportation of passengers and freight . . . It is the mode of construction and chartered use, and not the motive power, that determines the character of a railroad. . . . The term 'railroad' is generic, and embraces all species of road constructed and chartered with the above-mentioned attributes. . . . When the act deals with a genus, and the thing which afterwards comes into existence is a species of it . . . the language . . . is generally extended to (the) new things which were not known and could not have been contemplated by the Legislature when it was passed." McCleary v. Babcock (1907), 169 Ind. 228, 82 N.E. 453, 456. See Muskogee Electric Traction Co. v. Doering (1918), 70 Okla. 21, 172 P. 793, 2 A. L. R. 94.

There has been some confusion in the law over the rights and duties of an interurban railroad, as distinguished from a steam railroad, due to the fact that an interurban railroad sometimes partakes of the character of a street railway when its tracks are laid in the streets of a city, but as pointed out in Snow v. Indianapolis, etc., Ry. Co. (1911), 47 Ind.App. 189, 195, 93 N.E. 1089, 1091: " When we consider an interurban railroad operated on its own private right of way, or outside the traveled portion of a public highway, there appears no reason for distinction and there is none." See also Cin., etc., Ry. Co. v. Lohe (1903), 68 Ohio St. 101, 67 N.E. 161, 67 L.R.A. 637, and Guion v. Terre Haute, etc., Traction Co. (1924), 82 Ind.App. 458, 465, 143 N.E. 20. The appellee's railroad on which appellant's decedent was killed was operated over its private right of way from Newcastle to Indianapolis. Interurban electric railroads operated in this manner have uniformly been held to be included in the term railroads and we hold that the statute in question here applies to all railroads, including electric interurban railroads.

This is an action for damages on account of the death of a human being, and is predicated upon § 292, Burns 1926, which is as follows: "When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter if the former might have maintained an action, had he or she (as the case might be) lived, against the latter for an injury for the same act or omission. The action shall be commenced within two years. ...