167 Ind. 330 | Ind. | 1906
According to appellee’s complaint, appellant carelessly and negligently left within the traveled way of a farm crossing, and as an obstruction to the free use of the same, a hand-car, having upon it tools, tin dinner buckets, and clothing, and, as a result of the negligence charged, one of the animals—a mule—composing the team which appellee was driving along said way and across said track, became frightened at the hand-car and ran away, throwing appellee out of his wagon and injuring him. Appellant, having been defeated in the trial court, prosecutes this appeal, and by its first assignment of error draws in question the propriety of the ruling of the court below in overruling a demurrer to the complaint.
It is contended by appellant’s counsel that, so far as the complaint shows, appellee was a bare licensee, and that, having availed himself of the privilege of using the crossing, he was bound to accept it as he found it; or, in other words, that appellant could not properly be charged with negligence' in having the car within the way.
The allegations of the complaint concerning appellee’s authority to use the crossing are as follows: “That said part of said railroad which runs through said Clark county extends from the city of New Albany to the city of Horth Vernon, Indiana; that at a point on said line of road, at a point about five miles northeast of said city of New Albany, Indiana, and about three hundred yards northeast of what is called and known as the “31. and L.” cement mills, defendant had, before November —, 1903, constructed a private wagon-road crossing of its said railroad track at said point, and which said crossing was then and there for the use and benefit of the owners of the adjoining lands on opposite sides of said railroad track at said point, and for their tenants, and for all others who might have occasion to cross over the same in the use of said lands aforesaid;
We find no error. Judgment affirmed.