20 Ind. App. 348 | Ind. Ct. App. | 1898
Action by tlie appellee against the appellant, the Baltimore & Ohio South Western Railway Company, for damages sustained by appellee by reason of the death of his infant daughter, who was killed by one of appellant’s locomotives. The complaint was in two paragraphs. Both paragraphs of
It is first contended by appellant that the first paragraph of appellee’s complaint does not state facts sufficient to constitute a cause of action, and that the court erred in overruling the demurrer thereto. The statutes of this State give to the father the right to maintain an action for the injury or death of a child. Section 267, Burns’ R. S. 1894 (266, Horner’s R. S. 1897); Pittsburg, etc., R. W. Co. v. Vining’s Admr., 27 Ind. 513; Mayhew v. Burns, 103 Ind. 328.
The first paragraph of complaint alleges in substance: That appellee was, on and prior to the 8th day of June, 1895, the father of one Ruth Bradford, who was a healthy, bright and intelligent child, and at that time two years old; that appellant, a railroad corporation, owned, operated and ran over its track trains of cars by and through the city of Washington, Daviess county, Indiana; that appellee on said day, together with said Ruth and his wife, were living on a farm which is situated about a mile west of Washington and which adjoins and abuts upon and lies immediately north of appellant’s track and right of way; that the house in which appellant lived was situated about one hundred feet from appellant’s track,
There can be no doubt as to the theory upon which this paragraph of complaint is drawn. It is predicated upon the theory that appellant was required by law to construct a fence along the line between its right of way and the land of appellee sufficient to turn cattle, horses, mules, sheep, hogs, and other
The statutes of this State requiring railroads to fence their rights of way is as follows: “That any railroad corporation, lessee, assignee or receiver, or other person or corporation running, controlling or operating, or that may hereafter construct, build, run, control or operate any railroad into or through this state, shall, within twelve months of the day of the taking effect of this act, as to those already completed, and within twelve months from the date of construction and completion of any part of a line of road hereafter constructed, erect, build, construct and thereafter maintain fences, which may be constructed of barb wire, on both sides of such railroad throughout the entire length, completed within the state of Indiana, sufficient and suitable to turn and prevent cattle, horses, mules, sheep, hogs or other stock from getting on such road, except at the crossings of public roads and highways, and within such portions of cities and incorporated towns and villages as are or may be hereafter laid out and platted into lots and blocks, and shall, also, and in like manner and within the time hereinbefore prescribed, construct where the same has not already been done, and thereafter maintain at all pub-
This court is of the opinion that the injury herein complained of is foreign to the object of the legislative order above referred to, and that there could be no recovery under the first paragraph of appellee’s complaint; that the statute imposes no duty to fence as respects children, and has no application to a case like the one now before us. It is in many respects similar to the case of Gorris v. Scott, L. R. 9 Exch. 125. The last named case was a suit instituted by the owner of some sheep to recover from a shipowner for the loss of the sheep by reason of their being
This principle is fully discussed in the well-considered case of Hall v. Brown, 54 N. H. 495. The Supreme Court of this State have held that the act of April 13, 1885 (section 5323, supra), did' not repeal the act of 1863 (section 4025, et seq., R. S. 1881). The title of the act of 1863 is, “An act to provide compensation to the owners of animals killed or injured by cars, locomotives, or other carriages of any railroad company in this State, and to enforce the collection of judgments rendered on account of the same.” One section of the act provides that the act shall not apply to any railroad that may be securely fenced and the fences properly maintained. The act of 1885 provides that the railroads shall be fenced, if not by the companies, corporations or persons operating them, then by the land owner through whose land the road passes, under certain conditions in the statute set forth. The liability of the company failing to perform all the acts required by this law, is determined by the act itself. It is provided therein that when ther fences, such as are de
Our statutes upon the subject of fencing railroad rights of way are plain, and the mischief to be remedied thereby is fully and completely set out. What manner of a fence could a body of law-makers describe which would be sufficient to prevent children from going upon the right of way of a railroad company? Certainly no fence which would be sufficient to turn horses, cattle, sheep and hogs, as is specified by our law, would offer much of an obstacle to the ordinary boy four years old and upward, who might conclude in the absence of parental care, to climb over it. This court will take judicial notice that the child two years old is non sui juris and that, therefore, negligence will not be predicated upon its own conduct, but its tender age will not prevent it from becoming a trespasser (see Rodgers v. Lees, 140 Pa. St. 475), and as a trespasser the appellant owed no duty to it except that if the child was discovered on appellant’s premises in a place of danger, to use every effort to prevent its injury. Pennsylvania Co. v. Meyers, Admx., 136 Ind. 242; Wabash R. W. Co. v. Jones, 163 Ill. 167, 45 N. E. 50.
This brings us to the consideration of the second paragraph of complaint, wherein, after repeating the allegations of the first paragraph of complaint, appellant’s negligence is stated in substance as follows: That it was the duty of appellant, in running its trains, and when the same was not less than eighty or more than one hundred rods from the' public highway crossing, to sound the whistle on the engine three
It is not contended that appellee’s child was not a trespasser upon appellant’s track and right of way, and it is not alleged that appellant’s engineer saw the child upon the track in time to have checked the train and avoided the injury. Then the injury could not have been wilfully inflicted; neither was the act negligently done because appellant, not seeing the trespassing child, owed no duty to it. If the train had been thrown from the track by reason of striking a trespasser, and an injured passenger thereon had brought suit against the railroad company, alleging the negligence of the company in that the engineer failed properly to observe the track and keep a lookout ahead for obstructions of any kind, or if the engineer had seen the child upon the track, and after seeing it had failed and neglected to use every means in his power to avert the disaster, then an entirely different case would be presented. The only other act of negligence charged in the second paragraph of appellee’s complaint is appellant’s failure to give the statutory signals at the crossing near where appellee’s child was killed. There is no averment in the complaint that appelant’s failure to give the statutory signals for the crossing contributed to the death of the child, except that it is alleged that if the whistle had been sounded and the bell rung, as is provided by the statute, appellee could have known of the approach of the train in time to find the child and rescue it.
The statute of this State in regard to signals to be given at crossings is as follows: “It shall be the duty of all railroad companies operating in this State to have attached to each and every locomotive engine a whistle and a bell, such as are now in use or may be hereafter used by all well managed railroad com
We think the statute was intended solely for the protection of persons who might be upon or approaching crossings, or of animals being driven along the highway, and has no reference to a case like this. Here was a child, a trespasser upon appellant’s right of way, not upon the highway dr the crossing, but a considerable distance from the highway crossing, and had not been upon the crossing, but had come upon the right of way as a trespasser from the very first. It is not alleged that any one in charge of the train saw the child, but the allegation is that had the statutory signals been given for the crossing, the father of the child could have been warned that the train was approaching, and could then have searched for the child, and if found on appellant’s track, could have rescued her before any injury was done. The case of Metallic Compression Co. v. Fitchburg R. R. Co., 109 Mass. 277, was an action brought against a railroad corporation for damages for negligently severing a hose which was laid across the track in the town of Summerville, thereby cutting off the supply of water from a fire which was consuming plaintiff’s factory, whereby the building and its contents were destroyed. It was said in that case: “One
For the reasons above stated we are of the opinion that the second paragraph of complaint did not state a cause of action, and the lower court erred in overruling the demurrer addressed thereto. Cause reversed, with instructions to the lower court to sustain the demurrer to both paragraphs of the complaint.