*1 judgment, omission, an will be affirmed. Hughes (1954), Bank Terre Haute State W. 512, App. 117 N. E. 2d Williams 563; (1953), 123 405; App. E. 2d 112 N. Williams 644, 646, App. Witte v. Witte 113 N. E. 2d Branson Branson McBride v. ex E. State rel. (1933), 97 Ind.
McKinley
388
Judgment affirmed.
Reported in
Note. — Elgin, Budkiewicz and Eastern Joliet Railway Company. 29,562. Rehearing
[No. Filed June denied -October 1958.] *2 Jay Hammond, Darlington, appellant. for Peters, Peters, Highland McHie, Glenn D. & of Ham- mond, Hackbert, Stevenson, Conaghan, L. Harlan Hackbert, counsel, Chicago, Illinois, Velde & appellee. appeal here J. This reason of four
Emmert, *3 judges failing Appellate Court to concur. Sec- 4-209, Replacement. tion It Burns’ is from a judgment appellee appellant entered for re- because fused to amend his after a demurrer want of facts had been sustained thereto. personal injuries by is for sustained
appellant freight when his automobile collided with a operated by appellee place train at a where the railroad Highway grade. crossed Indiana No. 149 at The cross- ing unlighted, protected by gates, lights was flasher warning any device, mechanical but there was sign crossing. a at the paragraph cross arm Rhetorical charged: 4 of the 20, 1953, evening On October “4. after returning
dark, driving work, plaintiff was home from go- 1951 Pontiac automobile. He his was ing Highway 149, approaching north said said crossing from the south. His automobile collided with: one of cars on this defendant’s cross- ing. proximate-re- This collision direct and was a negligence (that say, sult of defendant’s is to degree employees failure of its said to use that ordinary prudent person'would care which an use - following circumstances) under like in the re- n - spects: (a) Defendant had created a situation at crossing particular at this time which in crossing fact made the time extra hazardous-at-that- giving a deceptive appear- false safety, ance of ceive and likely which was did de- arid entrap approaching an motorist using ordinary plaintiff. care More particularly; night. a it was dark This was a top highway. two-lane black It had recently (cid:127)' coating been blacktop. covered with fresh placed Defendant tank black car across this crossing. highway at this The nature- of the tank body car was such that its black tank was suspended several feet above the surface of highway crossing, at the and there was open space considerable beneath and at the conjunction This, ends of the tank. top highway, appear- the black created a false approaching ance and illusion to the motorist plaintiff’s crossing situation that open extending only that there was a black beyond ahead of him across and crossing. In this situation which in fact ex- night, using isted at ordinary person this position care in the of defendant’s train crew would known have that motorists using ordinary care such as were in danger being entrapped deceived and into colliding car, with this tank and would have prevent used deceptive care to situation, black car this placing particular either position in this highway, relative to the by placing some temporary warning kind of crossing by light at the means or crew *4 member, any other means sufficient to warn danger the motorist of hidden this confront- ing him. knew, This train crew then and there ordinary or in the exercise of care should known, all have the facts above set forth in neg- they paragraph, this but nevertheless anything to warn do lected and failed to night. peril particular crossing that plaintiff approached this As night, good equipped and with he had his car brakes, headlights alert adequate and nary less, he was and using ordi- keeping a look-out and was safety. But neverthe- care for his own by aforesaid situation of the reason defendant, un- he was said to avoid car time able colliding see this tank it, to collide caused with it.” hardly as a model to be commended complaint Code, pleading
of succinct'
of facts under the
but
appellee
any
the other hand the
did not file
motion to
require
specific.
it to made more
If
be
such motion
had been filed and overruled
then followed
facts,
sufficiency
demurrer
for want
com
plaint would
determined
be
from the facts
stated
complaint.
Neal Baker
198 Ind.
768; Enterprise,
etc. Pub. Co. v.
153 N. E.
Haute,
195 Ind.
Craig (1924),
302, 306,
Terre
Phillips etc.
Traction Co. v.
191 Ind.
374, 380,
740.1
The rule is well settled in this state that where there
require
motion to
has been
no.
be made
only
proper
1. “This can
mean that where a
motion to make
pleading
specific by setting
duly made,
the
and is
more
out the facts is
overruled,
pleading
regarded
already
must be
specifically
support
stating
the facts relied on to
the conclusions
Haute, etc.,
Terre
motion was addressed.”
Trac
to which such
Phillips
380, 381,
tion Co. N. E. 740.
specific
“Appellant’s
more
motion to make
support
setting
of several al
on to
each
the facts relied
out
sufficiency
having
overruled,
leged
therein
been
conclusions
must be determined
a demurrer
to withstand
any
support
stated,
from
without
from
facts
fully pleaded and
facts
drawn from
were not
which
conclusions
Phillips
etc.,
Haute,
Traction Co. Terre
in it.
out
set
191 Ind.
Craig
Enterprise,
etc., Pub. Co. 374,
more is attacked and its demurrer, complaint liberally a construed validity. Operating to sustain Co. v. its Lincoln 551, 558, 873; (1953), Gillis 232 Ind. 114 N. E. 2d Roch- 432, Bridge 439, (1919), ester Co. 188 v. McNeill 122 E. 662.2 N. alleged
The memorandum to the demurrer complaint charge negligence. failed to actionable
Actionable three ele- essential (1) duty imposed by ments: a law to do or not act; a (2) to do duty certain a violation of that by an act or omission act which constitutes a breach duty; (3) of that injury proximately and by caused duty. Haute, breach Terre etc. Traction Co. v. Phillips (1921), 374, 382, 191 Ind. 740, 132 N. E. supra; Elder, Rutledge, Receiver v. (1940), Admx. 217 459, 464, 358; 27 N. 2d Indianapolis E. Abattoir Neidlinger (1910), v.Co. 400, 403, 174 Ind. E. 92 N. 10-3904, 169. Section Burns’ 1956 Replacement, creates duty a permit freight a railroad not to a train to construing complaint 2. “In a a where demurrer inter posed, it will necessary be deemed sufficient allega whenever fairly gathered tions can be averments, from though all the even illogically stated way argument, and all facts will be implied deemed stated can be from the made intendment, fair and be impliedly reasonable and facts so averred will given directly the same force as if stated. Domestic Block Coal DeArmey (1913), v. 592, Co. 179 Ind. 100 N. E. E.N. 99; Agar 819; Valparaiso State 176 Ind. 94 N. E. Lighting Tyler (1911), Co. v. 177 Ind. 96 N. E. Rich etc., Light, mond Co. v. Rau 184 Ind. E. 666.” Fauvre Coal Co. v. 314, 325, Kushner 409. present pleading, “Under the liberal rules of be it will un necessary analyze particular, for us this for only directly specifically the demurrer admits the facts implied in the also all facts that can but be allegations by reasonable fair Do from intendment. DeArmey (1913), mestic Block Coal Co. E. 100 N. Coakley 675, Ind. Coal Vandalia 102 N. Bridge E. 426.” Rochester Co. v. McNeill 432, 439, 122 Ind highway.3 remain public In view of across it, rule that we to sustain we construe charged momentary must hold that more than stopping, blocking reasonable time. statute was enacted for the benefit of using public only highways, keep traffic moving, protect but travelers from kind of an highway. obstruction See Central Indiana R. Co. *6 262, 272, 186 Wishard 114 E.N. A 970. v. negligence this per violation of is plaintiff statute se. A may guilty negligence contributory be of colliding obstruction, with such an but that another matter to complaint charged be considered later. The which, facts against demurrer, showed a violation stat ute, necessary and it was not to name the statute breached, charge language or in the omissions exact judicial of the statute. take “We notice of our statutes. alleged complaint
The here facts which breach put upon appellant duties by the statute. This allegation was a negligent sufficient conduct. Penn Fertig (1904), v.Co. 834, 70 N. E.
supra,
1092,
886,
45 C. J.
J.C.
S.
§187.
facts
constituting the breach of the
specifically
statute were
alleged
so certain
charge
that the nature of the
was
apparent.” Corey
Smith
452, 456,
Burns’ 1956 complaint now of law on hold this now as a matter nn before us. charged that also to the demurrer The memorandum affirmatively that appeared from the negligence. contributory guilty was contributory need not from Freedom - contributory neg complaint, for in a be 2-1025, Burns’ ligence defense. Section a matter of Contributory negligence af -must Replacement. aas face of the firmatively appear from may be sustained a demurrer matter of law before 1, 30 N. E. (1940), 218 Ind. v. Sink Lindley cause. (1918), 187 456; Cleveland, R. Markle etc. 2d Co. 371; Chicago, Barnes etc. Cole (1918), 68 Ind. N. E. 345. (1912), 49 Ind. Searfoss affirmatively ap shows fail to find We negligence; contributory guilty pellant contrary, he to the appellant notice had Until had right appellee use due would assume crossing. Elgin Dairy Co. *7 its use of the care in' 466, 474, 108 Shepherd (1915), 183 Ind. v. tcharged complain 234, 353. The 109 N. E. complaint, night we “dark.” To sustain have was visibility very right was limited to infer Since 450, 459, 81, Ray (1935), Ind. Opple 208 v. rule that the driver of a is no absolute is there .car object danger high every of in or on the bound see night. may of the way In view rule at driver care until he will use due has notice to others assume contrary, a he matter bound as of law to speed that at reduced all times he such could at drive rule, clear ahead. If that stop view were the his within night negligence. every would be at driver guilty The equipped averred “had his car good'-'arid adequate headlights brakes, and he was and'-keeping using alert a look-out ordinary- and was safety.” crossing care for unlighted, Ms own was signals, without1'automatic and the tank car was black stopped top highway. across black a On this state of thé record a we cannot hold as matter of law guilty contributory negligence. he was This' case where a lawfully train'had crossing, proceeding entered and was to mov e remaining cars across when traveler ran case, into In the train. railroad has the legal right complete crossing, legal duty traveler; therefore, breaches no owed the guilty' any negligence. holding is not This was the Casey in New York Central R. Co. 464, 14
Ind. N. E. 2d 714. unduly opinion give It would extend this a full analysis by appellee relied on cases to sustain judgment, they do but we not feel are conclusive appeal on the to be decided in the issues at bar. In both Pennsylvania Railroad v.Co. Huss
71, Ry. E. 919 and C. C. C. & L. St. Co. Gil lespie (1930), 173 N. E. there properly criticized, been a trial. Both had and in contributory negligence effect overruled as to as a mat Opple Ray (1935), ter law supra.
195 N. E. Morley
In C. C. C. & St. L. R. R. Co. disclosed crossing the train in motion across the when the place, took charge collision did not give signals approach, negligent a failure of its blocking speed, length an unreasonable running unguarded time, or an cut of cars over the
544
crossing. of failed to show breach any duty plaintiff; there no ac- hence was owed charged. York negligence In New Central tionable 366, 24 (1940), App. 107 Railroad Co. v. Gardner in the train was 811, occurred as N. E. 2d the collision crossing. proceeding motion over R. Chi., Milw., Pac. R. In Killion v. St. Paul & 527, 647, as App. 25 E. 2d 107 Ind. N. discussion judgment inadequate, whjr the affirmed the court the law on sustain fails to into consideration take ing In a demurrer. when first attacked 428, E. App. N. Pitcairn Honn 109 Ind. 733, on the trial disclosed the 2d evidence negligence guilty contributory a matter as was stopped no on the law. There was train 505, Pennsylvania 119 Ind. R. Co. Rizzo 885, 91, appeal 2d was E. N. 2d R. v. B. & O. Co. after a trial. In Carmichael 698, car driven E. 2d N. correct, moving train. The into the side of result holding but the court was unwarranted negligence affirmatively contributory disclosed matter law. Casey (1938), 214 R. R. Co.
In New York Central 714, supra; Dyer, 2d Admr. v. New E. E. R. 17 N. York R. Central Dyer, Admr. York and New Central R. Co. 2d each (1938), 214 Ind. 2d automobile moving train as into the side of a was driven involved crossing. proceeding was no over the There it was any duty by these three the railroad breach cases, proved. and no York New Central per- opinions appellee relied on of the above None charge complaint at failed bar us suade *9 negligence, affirmatively it actionable disclosed negligence. appellant guilty contributory Judgment trial reversed with instructions complaint. court to to the overrule demurrer Landis, J., concurs. J.,
Arterburn, specially opinion. separate concurs Achor, J., Bobbitt, opinion dissents with in which J.,C. concurs. Opinion
Concurring majority opinion, J. I concur in the Arterburn, making every and do not construe it as a railroad liable freight stops highway. time it a line of cars across a The in the are dif this case respects ferent in some from those in the of: cases Ry. Gillespie C. C. C. & St. L. Co. Ind. App. 535, 708; E. York 173 N. New Central R. Casey (1938), E. 2d New
York Railroad Central Co. v. Gardner 24 N. E. 2d N. Y. Central R. R. Co. v. Dyer, Admr. 2d 718.
I opinion placing respon- do construe as the same sibility placed on railroads to care as is use on motor- highways. ists on the (and speed)
The highways method of travel on the changed considerably has fifty years. over last required acts which are to exercise due care rail- roads, as highway, as well travelers on the have changed changed as travel has from the horse-drawn gravel faster-moving vehicles on roads motor paved car on smooth roads. Likewise the method and signaling warning danger means of improved during years by perfection of various auto- devices, lights, flares, matic reflectors and luminous reasonable, are now-
paints uses to the extent that such ' practical.- they previously where státuté, regardless be age, any would In this large, anyone to’ a leave law for at common portion of object yet indistinguishable, the traveled on night or a (be it a motor vehicle dark warning car)- travelers without railroad such-a condition deceptive condition. Whether emergency injury and the oc- of an result existed danger eliminated, be could before curred matter- of /defense. *10 right park statutory on to the “The' limitations field, pre-empt entire and the stop the
/ or -do not right high- to use on law limitations common except they ways expressly prevail where have been still abrogated. Accordingly, a traveler’s any highway place right not sonableness and or equal public at stop on a by by the rea- prohibited statute is determined circumstances of his conduct under the by conduct interferes with the extent that such prevents of the road with the free use others rights.” Encyclopedia, Law Indiana West’s Automobiles, §70, p. negligent contributorily a motorist If it is not painted battleship gray with into a tractor-trailer drive load, highway tarpaulin parked paved a on a over night lights dark, warnings, rainy then on a without freight stopped true where a car a the same is on disguised highway under conditions. North similar Inc. Transit, Wagner western Delivery E. 2d Cushman Motor Co. Mc Cabe, Admr. N. E. 2d 769. stopped The fact that vehicle is common a carrier change duty use care nor to does observe the Evansville, Ry. statutes. etc. applicable Woosley Co. v. 2d 355. liability There should-not be one rule of for motor- creating dangerous persons ists conditions highways creating and. a different rule for railroads complaint like condition. The in- with reasonable tendments be drawn therefrom states cause of negligence principles action in under the established in this state. Opinion
Dissenting opinion J. I am Achor, spe-
fails to state a cause of action under either negligence upon majority opinion cific acts of which predicated. negligence act of first such is the §10-3904, assumed violation of Burns’ 1956 Repl. [Acts 169, §666, p. 584], prohibits ch. which Railroads standing permitting from upon their trains to remain crossings. However, regard to this issue alleged appellant his or con- argument tended either in his or in oral that the briefs negligence complained of constituted a violiation Rather, specific this statute. act of al- leged upon appellant’s and relied arguments written and oral is the violation of duty common-law “to warn [appellant] particular peril” appellee which existed reason of night, black car at which *11 allegedly entrapment. condition created a situation of consistently This court has heretofore -maintained presented argument position that not in the the issues required by appellant’s section of brief as Rule 2-17 of Toll-Bridge Indiana State court are waived. Commission v . Minor 2d City Washington (1952), 230 Greenwood v. Ind. Income Tax 102 N. E. 2d Gross Div. v. Conkey Co. (1949), 228 Ind. N. E. 2d general policy N. E. re 2d 805. this court has As pre fused to decide cases on the basis issues argued by parties sented the trial the on court nor grounded appeal.1 policy substantial rea losing party son. In fairness to the he should have an opportunity present contrary position the and the. aspects court should be advised on all of the issue before- stating opinion. However, an since the case has been majority opinion decided in the on the basis of the stat [§10-3904, supra], ute law,, well as as under common alleged opinion and since I am the that the facts do- not state a cause of action under either said acts of' negligence, necessary my employs dissent con sideration of both such acts. question
It occurs to me that
toas whether the.
facts
constituted a cause of action under the
statute has been well
contrary
to the
established
Ry.
case of
Gillespie
C. C. C. & St. L.
535, 541-542, 547,
Although Court,, that case Appellate was decided presented same issues were petition this court on petition to transfer and the was denied.2 The facts and issues that case are in similarity marked with those present in the case.3 In Gillespie case, supra, 1. Co., (1958), Rule 2-17. See: Tinder v. Clarke Auto 302, 149 2d 808. Gillespie (96 In 535), case transfer was grounds: (1) Appellate asked on two basic erroneously That Court question law, decided new to-wit: That allegation stopped mere the railroad one of its trains and freight allowed its cars stand across the did not [§10-3904, Repl.] constitute a violation of Burns’ 1956 §2903 and. allegation the mere of such therefore that tute fact did consti- per se; (2) that under the common law the facts by negligence presented (the condition unattended its “a injury. railroad’s) part” which resulted in the appellant’s taken from brief 3. The night “. . Gillespie as follows: That was case asphalt pavement falling heavy on the rain was dark paved place Huntington at said Street said South which *12 specifically allegations court held that that cars were “standing across” the intersecion are not sufficient allege a [§10-3904, supra].4 violation §2903 lights and said lamp posts at said time. That the the from on the bridge burning up were were in faces and reflected the occupants pp. and the other car. 4-5 said Appellant’s Br. being “That at the time said automobile was driven toward employes defendant, said defendant, switch of said of said acting scope employment defendant, in the of their for had said string consisting freight cars, moved a of a number of the east on Huntington end of which a in track crosses said South Street city. standing freight said That said cars across said blockading wholly obstructing track and said street and employes charge that said or train crew in of said locomotive negligently stopped and cars a man- said cars over and in such knew, employes highway. or ner as to obstruct said That said by known, it was use of reasonable care could have highly dangerous public highway permit using to the said crossing. standing train place That said said ears to remain on said employed by negligently crew failed to so said defendant place any flagman any light person lantern and failed to or other with a highway ears of said on the on the north side said public of signal approaching and to warn the as a vehicles brief.) appellant’s dangerous (pp. situation.” 4-5 companies the legislature given the railroad 4. “The public highway. upon any right across to construct their roads or Repl.]. [§55-618, Certain §12948, Burns’ 1951 Burns’ 1926 See any required cross when its tracks of a railroad duties are right so any incorporated street, alley The town. or in avenue company author implies necessarily that the railroad conferred engines, cars on trains and operate its locomotives ized to tracks regulations subject crossings, to such and over regard others whose legislature, prescribed by with due highway.’ ‘King’s equal Jacobson rights are in use ; 577) Co., supra (87 Atl. J. Law v. N. Y. S. & W. (31 Dillon, supra (1 W. Har. W. Philadelphia R R. Co. v. 114 & 894).” (96 at Delaware) 247, L. Atl. 15 A. R. 713.) 547.) (173 p. Blackford, Ezra Manlove “. . In case of 389, ing right necessary Supreme general that in assert Court said: ‘It rule every statute, pleader fact should aver founded on a exam is within it.’ An to inform the Court his case appellee’scomplaint contained ination the several brought appellee has the law to disclose that herself within fail supra charging The offense the violation of [§10-3904]. §2903 part section is in the first of the above mentioned defined permitting across street cars to remain the train of enjoyment prevent public highway so as to the use or public thoroughfare. citizens, as a street freight Momentarily stopping furnished.) train (Italics etc., street, highway, is not a violatio of public cars on a n complaint, her appellee, the averments of supra. §2903 Gillespie placed upon the. in-the The. .construction statute se, reason, supra, is based substantial ca *13 legislature and the permitted fact that the has the de nearly change cision to stand three without decades evidence that approval the construction met with the legislature. of the suggested
It case, Gillespie that the decided the Appellate Court, with, is in conflict decisions of this (cid:127) obliged I am contrary position. to take a While court. it is true 'that this court has stated on séveral occasions that [§10-3904, supra] the'violation the statute negligence p.er se, in none said did court cases to by defining undertake construe the statute the facts necessary-to constitute a violation. See: Central Indiana Ind. 262, Wishard Co. v. E.N.
Furthermore, it is asserted that this case and the case, Gillespie supra, distinguishable are plead upon the ings. However, my opinion in the eases- are alike in all aspects. noted, alleged As we have facts material the presented and'the issues Gillespie in this and the case were almost identical. In both cases that it is the standing railroad cars upon were crossing; nighttime that it was painted the cars were asphalt black and that the was black. In- each instance the automobile was driven into the side of the cars highway. across In each case it is con tended that the facts exceptional constituted an' hazard imposed duty upon which- give the railroad to driver of the vehicle some notice or charges are not ‘standing allegations the cars were across.’ The .that allege (Our italics.) a violation §2903. sufficient R. R. v. Taurer 176 Ind. Cleveland S) 20; (N. Becker 39 L. R. A. 71 N. 160.” v. State 33 Ind. Wynant I. R. E. (at C. C. C. & R. v. 541-542.) 711.) pp. (173 filed motion- warning. there case was In neither case in each specific and complaint more make the by:demurrer. contested sufficiency complaint was of the construed Gillespie case, supra, the courts In the allegations statute and considered not sufficient and concluded the . (§10-3904, the statute within state a cause of- action supra.) Gillespie reaching
In conclusion above rule case, supra, employed the well the court established damages based-upon the maintain'an action bring specific pleader must statute violation of within, statute, provisions the clear himself 1, 106 Ewing Ayer State ex rel. exist, exceptions E. 2d or if conditions negative enacting pleader must clause of the statute *14 exceptions'in- order of conditions or the such existence with this rea action.5 Consistent state a cause of to case, soning Gillespie supra, is the decision in the facts, first, grounded upon, the statute the [10- apply to made to circumstances expressly is 3904] permitted stand to “remain- where railroad-' cars are crossings ing” which tem as contrasted with those on crossings operation upon in the current porarily stand regard to be noted In- this is of cars. “standing” qualifies which
word “remain” Dic New International in- cars is defined Webster’s tionary “To be left after others have been follows: as -destroyed; left after a number or to be removed' or stay cut off. ... To quantity been subtracted plaintiff’s he If, cannot . -. . cause action 5. “. . . exception,, accurately alleged he .must reference to the .without dif he allege relies is it. An show that he not within sufficient facts to general rule, an, exception must to a he state h,is. exception.” Am. Jur. bring 41 case within the facts which p. §85, 3 552 Secondly,
behind while others court withdraw.” Gillespie case, supra, that since other stat reasons [§55-618, Repl.] upon the utes Burns’ 1951 confer rail right acquire right-of-way and to construct roads the operate highways that public roads and trains across necessary operation temporary incident to such standing highways necessarily public of cars across is implied and authorized. It therefore follows that stopping public high of trains across and/or ways, unreasonably long than period for an time, exception necessary is a condition to and in corporated [§10-3904], within the statute which con exception pleader obliged dition or negative allege in order special violation of the statute. This appellant, case, do, in this failed to and for that opinion reason I am of the he has not stated a cause of action within statute.6 6. “. . . . It is well settled that a only entitled recover, damages predicated an action negligence, proof of specific one or more of the negligence alleged acts of complaint, right his his disclosed and that a proof failure to make such will defeat action, no matter what other acts of are Indianapolis, etc., Derry evidence. Transit Co. v. (1904), 912; 33 Chicago, Ind. etc., 71 N. E. R. Co. (1904), Thrasher 35 829; 73 E. Plummer
Indianapolis
(1914),
R.
Union
Co.
56
601;
Ind.
.
. Terre
(1910),
Haute Electric Co. v. Roberts
941; Indianapolis Traction,
etc.,
E.N.
Co.
320; Sandy
etc.,
River,
Mathews
etc.,
(1901), (Ky.)
180; Savanna,
Coal Co. Caudill
60 S. W.
R. Co. v.
Tiedeman & Bro.
Fla.
South.
Louisville, etc.,
v. Wade
46 Fla.
35 South.
Milling
Mackey
Chicago,
App. 57;
Northern
Co. v.
99 Ill.
etc.,
giving
R. Co. v. Mock
141. The
in
Ill.
this
rule,
interpretation
struction
violates
as its reasonable
jury
duty
*15
would lead the
to believe
it was its
that
return
injuries
appellee,
finding
verdict for
on a
his
were caused
by any negligence
appellant, regardless
allegations
of
of
of
giving
complaint.
.”
of it
therefore error.
.
The
etc.,
Sherry
Indianapolis,
(1917),
Traction Co. v.
65 Ind.
4-5,
553
is,
question
state a cause
The next
did
against appellee
common
of action
railroad under the
alleged
Clearly
law?
no facts are
which constitute
“entrapment,”
that,
state of
it is not
either
since
knowledge
directly
by inference,
it had
of the facts
True,
have,
complained of.
occa
our courts
several
employees
duty
sions held that
is the
company
ordinary
op
railroad
to exercise
care
trains,
eration of
failure to so exercise such
may
negligence. Pennsylvania
care
constitute
R. R. Co.
334;
610,
(1952),
E. 2d
Sherron
230 Ind.
105 N.
Casey (1938),
New York
R.
214 Ind.
Central R.
Co. 714; Pittsburgh,
14
etc. R.
Pence
N. E. 2d
Co. v.
7;
Ind.
The
Toledo and
Railway Company
Wabash
v. Goddard
185; Evansville,
etc. R.
56 Ind.
Co. Hoffman
App.
788; Virgin
Erie,
v. Lake
etc. R.
However,
55 Ind.
cumstances in addition mere color standing upon crossing, their cars either the cross ing itself, had was hazardous stood for cars long time, knowingly period the railroad created erroneously person which induced the travel situation ing he upon the to believe that could traverse Gillies, safety, as in the cases (1954), 124 N. Y. C. R. R. Co. next friend Revlett E. 2d Louisville & N. Co. v. N. York, New etc. (1946), 224 Ind. 65 N. E. 2d prove Cleveland, etc., kind of another. R. Co. v. 160; Armacost, Lindley, Adm., Wynant, Adm. v. Thompson v. Citizens Street Ind. 295.” R. Co. 461, 465, E. 462.
R. Co.
v. Shields
185 Ind.
crossing been ex provide considered to ception. .
With exceptions, the mule of above common-law ¡ negligence applied has not been to trains cars which .or already crossings occupying are upon when vehicles crossing. highway approach Carmichael & O. R. Co. 2d Morley C., C., C. & St. L. R. R. Co. Co.
App. 515, 806; Pennsylvania 194 N. E. Railroad Huss New v. York Casey, supra. Gillespie Central R. R. In the case, supra, though they even cars blade- crossing .during stood on the for three minutes switch ing operations, law, that, the court held as a matter- .of presents “the -appellant evidence as far situation as ¡ negligence . concerned unattended on its ... part.” study
For question, an exhaustive of this see R., “Liability A. L. injury' of railroad for due-to" road running standing vehicle into train or car oh crossing,” negligence jury Question,” “d. Railroad’s pp. 138-139, 141-142. This treatise summarizes law as follows: “Disregarding mere statements of rules considering holdings, only the actual in about one recognized, the cases have courts that concern-
fifth of presented question jury circumstances ing plaint railroad, negligence the com- (Our not demurrable." case italics.) In each of the “one fifth of the cases” cited .in treatise, parties' above cases cited the. our atten- otherwise come have in other cases-which negligence addi- tion,'/.there acts of been other have of their the fact cars or To-the -mere color of the tion constituted which have negligence complained of made and thus jury question. present sufficient reasoning stated, upon which ac- As heretofore *17 tions such as have been held demurrable However, been have been born consistent. the decisions why the practical necessity. of reason same There is rules,.of. applied in are common law which may applied Rail- to railroads. motor vehicle cases be heavy carry commerce are the roads arteries which They necessary country. the national of our are required economy' They are and- national defense. - - | rights
acquire way by purchases their of and own began develop- public-grant.- operations after Their negligence. The ment of much the common law of operating railroads are a size costs methods comprehended by complexity readily ordi- juror. nary person serves There- who reasonable - fore, necessary nearly have considered courts required by every that of care instance standard protection public respect railroads crossings, specifically by legis- to their be stated - authority public or other order the re- lature public may sponsibility clearly and the of railroads be defined, duty and that within this standard of care the liability clearly each shall be defined and the by not be harassed ac- railroads shall unwarranted persons drive into the of their who side trains. tions reasons, opinion I For am of the these the law changed only legislative enactment. should be diligent adherence of our courts to the doctrine -of decisis has established our stare courts as the stabiliz-
ing society. force of our It occurs me that the law controlling of this case firmly has now been so estab- lished disturbed, under the doctrine that it should not be except legislative enactment.
Bobbitt, J.,C. concurs. Reported in 150 E.N. 2d 897.
Note. — Rosenwinkel, Worman Executor of the Estate
of Worman et al. 29,663. Filed [No. October 1958.]