12 Ind. App. 569 | Ind. Ct. App. | 1895
Lead Opinion
The appellee alleges, in his amended complaint, that the appellant “is and was, on the 11th day of January, 1892,- a corporation duly organized under the laws of the State of Indiana, and that on said day defendant owned and was operating and controlling a railway in and through the city of Indianapolis; that
The railroad between the points mentioned in the complaint and evidence was not on or along a highway, street or alley.
It appears from the evidence that appellant owned and operated the railway tracks on which appellee’s son was walking at the time he was struck by the tender attached to or forming a part of the locomotive of appellant. There were three tracks upon appellant’s right of way. At the point where the engine ran upon the boy the tracks ran on and along an embankment two or three feet high. The tracks between Orange avenue and Rural street are within the corporate limits of the city of Indianapolis. The boy entered on the tracks of appellant at Orange avenue. There were cattle guards where he entered. The tracks are much used by appellant and trains are run over them every few minutes.
The tracks are part of the main line of appellant, and upon them are located the large shops of appellant at the town of Brightwood, two miles east of the city of Indianapolis. There were fences on both sides of the track between Orange avenue and Rural street, which fences were erected by appellant, but which in places were out of repair or had been torn down by persons living in the vicinity in order to enable them' to enter upon the railroad tracks. From Orange avenue to the point where the boy was struck, which he had reached by walking east on appellant’s track, was 990 feet. The first crossing east of Orange avenue, is Rural street, and the distance between Orange avenue and Rural street, is one mile. At the time the boy was struck one engine was moving west, and the engine which struck him was moving east. Permission had been given at least one person by defendant several years prior to the accident
1. In failing to ring the bell.
2. Excess of speed.
3. In failing to have a watchman on the rear end of the tender "in order to avoid accident.”
It is not charged in the complaint, unless it is by inference, that children were in the habit either of crossing or walking up and down the tracks. There was evidence tending to prove that the tracks were used as an ordinary street by footmen, and also by school children, at least in crossing the same, but whether children were accustomed to travel along the same at this point is not clear.
It is not claimed in this case that the servants of appellant saw the boy on the track in time to have prevented the injury. Louisville, etc., R. R. Co. v. Lohges, 6 Ind. App. 288.
Neither is there any claim that the injury was willfully inflicted. Therefore the principles enunciated in Lafayette, etc., R. R. Co. v. Adams, 26 Ind. 76, are not applicable.
We quote as follows from the case last cited: "It is well settled that where the negligence of the defendant is so gross as to imply a disregard of consequences, or a willingness to inflict the injury, the plaintiff may recover though he be a trespasser, or did not use ordinary care to avoid the injury. Recklessness in the manage
In this case the only charge of negligence is the violation of the ordinance in the particulars hereinbefore indicated.
In special term a demurrer was sustained to the evidence. On appeal to general term appellee assigned as error that the court erred in sustaining the demurrer of appellant to the evidence. The general term reversed the judgment rendered at special term. The errors assigned in this court are as follows:
“1. The general term of the Marion Superior Court erred in reversing the judgment of the special term of the said Marion Superior Court.
“2. The plaintiff’s complaint does not state facts sufficient to constitute a cause of action.”
The appellee’s counsel say that “the theory upon which the complaint proceeds is that Clay Adair was a, licensee upon the appellant’s railroad and was killed through the fault of appellant, he and his paints being free from fault. Is the complaint sufficient on this, theory, the theory of negligence and not willfulness.” 'Adopting the construction given the complaint by appellee, counsel for appellant insist it is bad beyond the possibility of rescue. The contention of counsel for appellant is that the boy was a trespasser, but that if he was a licensee the complaint “is bad, because whether the person on the track was a trespasser or a bare licensee there can be no recovery, although the appellant’s servants may have been negligent.”
The gist of the argument of counsel for appellant on this proposition is as follows:
“There was nothing resembling an invitation. * * Railway tracks between stations are private property upon which no person, young or old, can walk without
In this case there was no inducement, allurement or enticement for the decedent or any one else to enter upon the tracks, except, such, if any, as may be inferred from the acts and conduct of the parties to which we have referred.
Counsel for. appellee contend that not only a licensee but "even a trespasser may recover under certain conditions for an injury negligently inflicted.” Also that the risk that a licensee assumes is the risk incident to the proper and lawful management and use of the property he is licensed to use, and that if the risk is increased by the licensor without notice to the licensee, and injury results thereby to the latter without his fault, the former is liable, and that the licensee in such case as this can not be held to have assumed the risk, unless it is held that he must assume that the railway company will violate the law.
The authorities are not in harmony on the questions presented for our consideration.
In this case appellant did not, on this occasion, use its property for a new or different purpose, or in any way change its character, except that in the usual and ordinary use of the property in moving trains, which was
In Jeffersonville, etc., R. R. Co. v. Goldsmith, 47 Ind. 43, the object of the action was to recover damages for a personal injury, which the appellee claimed he had sustained on the line of appellant’s road, through the carelessness and negligence of appellant’s servants and employes.
It was alleged, in the complaint, that for a long time the citizens of said town and vicinity, ‘ ‘with the knowledge and consent” of appellant, had used the main and side tracks of appellant’s road as “foot path,” etc.
The court said: “The track of a railroad belongs to the company, and is in no sense a public highway to those who are not being transported thereon. At public crossings, the public have the right to cross the track of a railroad, but in so doing all persons are required to exercise reasonable care and caution to avoid receiving injury, and the company is compelled to exercise the same degree of care and caution to prevent the infliction of injury. But between the stations and public crossings the track belongs exclusively to the company, and all persons who walk, ride, or drive thereon are trespassers, and if such persons walk, ride, or drive thereon at the sufferance or with the permission of the company, they do so subject to all the risks incident to so hazardous an undertaking.”
In the case last cited, the court held that the appellee was guilty of negligence contributing to his injury, and, therefore, that he could not recover.
In McClaren, Admr., v. Indianapolis, etc., R. R. Co., 83 Ind. 319, the facts were substantially that the injured party was walking, in the town of Worthington, on a
We quote from the opinion of the Supreme Court, on •appeal, the following: “The law is that between stations and public crossings a railroad track belongs exclusively to the railroad company, and that all persons who walk, ride or drive thereon, are trespassers, and if such persons do so at the sufferance or by the permission •of the company, they do so subject to the risks incident to so hazardous an undertaking, and if injured by a train •of the company there is no liability unless the injury was willful.”
In this case the substance of the instruction of the court was that under the undisputed facts the decedent ■was guilty of negligence that contributed materially to his injury.
In Terre Haute, etc., R. R. Co. v. Graham, 95 Ind. 286, the court said: “In this case, the collision occurred between crossings, at a point where appellee had no right to be; he was upon the track as a trespasser, hence no kind of care on his part could make his presence there •other than unlawful. In such case, the company is not liable on the ground of negligence in the running and management of its trains.”
In the case last cited, that part of appellant’s railroad between the depot at Greencastle and Greencastle junction had long been and then was used with the license and assent of appellant as a way for foot passengers to pass and repass on and along; that appellee was passing on and over that portion of the road on foot, as he had
In Ivens v. Cincinnati, etc., R. W. Co., 103 Ind. 27, appellant was injured in crossing the railroad track. The railroad track was the most convenient way to the field, and had been adopted by appellant and others as a foot-way to the field. The company was guilty of negligence. The court said: “He was thus not only guilty of negligence, but he was a trespasser upon the company’s property.”
In Cleveland, etc., R. W. Co. v. Stephenson, 139 Ind. 641, the court says: “If the appellee, without notice to or the knowledge of the company, took possession of one of the cars, moved it to the chute and loaded it with hogs, he was, at best, a mere licensee if not a trespasser. In either case the company owed him no protection from its mere negligence.” Pennsylvania Co. v. Meyers, Admx., 136 Ind. 242.
We quote from the recent opinion of Judge Baker, in the United States Circuit Court of Appeals, in Cleveland, etc., R. W. Co. v. Tort, Admr., as follows: “The decedent, accompanied by her son, was, when killed, walking on or dangerously near to the track of the company. He was not on or near any highway or street crossing. He was traveling along the right of way for. his own convenience, without any invitation, express or implied, and with knowledge of the danger of life and limb from passing trains. * * * The only excuse offered for such conduct was that the defendant had suffered other people to travel along its right of way without interference or objection. He was traveling upon the defendant’s right of way, not for any purpose of business connected with the railroad, but for his own convenience as a footway in reaching the village of Venice.
“The right of way was the exclusive property of the
In another case the Supreme Court says: “The owner of premises is under no legal duty to keep them free from pitfalls or obstructions for the accommodation of persons who go upon or over them merely for their own convenience or pleasure, even where this is done with his permission. In such case the licensee goes there at his own risk, and as has often before been said, enjoys the license with its concomitant perils.” Evansville, etc., R. R. Co. v. Griffin, 100 Ind. 221; Faris v. Hoberg, 134 Ind. 269.
In Barry v. New York, etc., R. R. Co., 92 N. Y. 289, the action was brought to recover damages for alleged negligence causing the death of John J. Barry, a boy ten years of age, who was run over and killed in attempting to cross the railroad tracks.
It appeared' that for more than thirty years the public were in the habit of crossing the tracks at this point to reach Madison and other streets, the proof being that several hundred people crossed there every day.
In Palmer v. Chicago, etc., R. R. Co., 112 Ind. 250, Judge Elliott says: “Where a railroad company licenses the public to make use of its track in a city, .town, or village, it can not treat one who avails himself of the license as a trespasser. But it is not enough that persons do occasionally use the track, for, to constitute a license, it must appear, either expressly or by clear im
In Carskaddon v. Mills, 5 Ind. App. 22, the appellee, Anna Mills, was the owner of a lot across which ran a road leading from one street to another, and it was used by the traveling public generally for said purpose, and had been so used for several years, but the owner had never consented that any one might use the road, having never been asked for permission to do so. In order to stop the travel over the lot, appellee stretched a strand of barbed wire across the rear end of the lot, about three feet above the ground and at right angles, or nearly so, with said road. Without any notice of this fact appellant, after dark, attempted to drive across this lot in the road and injured his horse.
Judge Reinhard says: “The first important inquiry that arises is as to the status occupied by appellant in relation to the appellee’s ground at the time the former attempted to cross it on the night of January 1. Was he a trespasser or a licensee? for we-think it clearly appears from the evidence that he sustained one or the other of these positions to the property. We think that the right the appellant had, if any, to the use of the appellee’s property was the same as that which the public had. The latter had used this ground, as we have seen, without objection, for a number of years. This did not amount to a dedication or give the public an easement, but did amount to a license. A license may be created either by parol or by acquiescence in the use of the property for the purpose in question without objection.”
We quote, in this connection, from the opinion of Judge Ross in Morrow v. Sweeney, 10 Ind. App. 626, as follows: “In every case involving actionable negligence, there are necessarily three elements essential to its existence. (1) The existence of a duty on the part of the de
In this connection we quote from a recent opinion of this court: "In actions for injuries sustained by a child, the question as to the negligence of the defendant, ordinarily, stands on the same footing as in case of an adult person, except when a child is seen by the defendant in time to avoid the injury, or when the liability of children to exposure is known by the defendant prior to the injury, then a higher degree of care is exacted of the defendant, under some circumstances, to avoid the injury.” Louisville, etc., R. W. Co. v. Sears, 11 Ind. App. 654; Louisville, etc., R. R. Co. v. Lohges, supra.
In the case last cited the court says "that as to children of tender years the company may be held liable not only where they fail to use proper care after the child is discovered, but also where they might, by the use of reasonable diligence, have discovered the child and have avoided any injury to it,” as asserted by some authorities.
In, a recent Missouri case the court says: "But because of the known propensity of children and even adults to take the chances of walking on those tracks in
In this connection we quote from the opinion of Judge Niblack in Indiana, etc., R. W. Co. v. Barnhart, 115 Ind. 399, as follows: “Where a person has a license to go upon the grounds or the enclosure of another, he takes the premises as he finds them, and accepts whatever perils he incurs in the use of such license. But when the owner or occupant, by enticement, allurement or inducement, whether express or implied, causes another to come upon his lands, he then assumes the obligation of providing for the safety and protection of the person so coming, and for any breach of duty in that respect such owner or occupant becomes liable for any injury which may result to the person so caused to come onto his lands. The enticement, allurement or inducement, as the case may be, must be the equivalent of an express or implied invitation. Mere acquiescence in the use of one’s lands by another is not sufficient. Such an implied invitation may be inferred from some act or line of conduct, or from some designation or dedication.”
The first question to be determined is whether, under the facts and circumstances alleged in the complaint, in the light of the authorities, the appellant owed to the boy a duty to protect him from the dangers growing out of the acts of negligence on the part of appellant charged in the complaint as the proximate cause of his injury.
The basis of the right of recovery is a breach of duty, and it is absolutely impossible that a right of action can
The nature and practical application of the elementary doctrine to which we have referred is shown in the case of Sweeny v. Old Colony, etc., R. R. Co., 10 Allen, 368, 87 Am. Dec. 644.
In that case the plaintiff was injured while crossing the track of the defendant by license, and it was held that there could be no recovery. In the well-reasoned
In this case it appears that appellant built its tracks and roadbed in the usual way. The tracks were enclosed by fences on each side. There were cattle guards where he entered. At the point where the engine ran upon the decedent, the tracks ran along an embankment two or three feet high. Trains in great number were passing over the tracks of appellant each day. The mile of road on which appellant was walking extended from Orange avenue to Rural street, the east corporation line> of the city, and between these two highways there was no crossing. There were cattle guards, tracks and fences warning the boy not to go on the right of way.
There is no fact averred in the complaint from which it can reasonably be inferred that appellant either expressly or by implication invited the boy to come upon the track. Neither is any such fact proven by the evidence. Mere sufference or permissive acquiescence in the use of the tracks and right of way, under the facts and circumstances of this case, is not sufficient to constitute an invitation. We can not imply an invitation to the boy to enter upon the tracks and right of way of appellant at the place where he entered and to travel longitudinally along the same in the manner he was doing when injured, and therefore the question is whether treating him as a mere licensee the company is chargeable with actionable negligence. Under the rule enunciated in Barry v. New York, etc., R. R. Co., supra, and in Fidler v. St. Louis, etc., R. R. Co., supra, appellant would be liable. Following our own cases, however, there is no liability unless it is on the ground that the appellant might, by the use of reasonable diligence, have discovered the boy and have avoided any injury to him. Jeffersonville, etc., R. R. Co. v. Goldsmith, supra;
The following cases are all distinguishable from the one in review and are not in point: Louisville, etc., R. W. Co. v. Phillips, supra; Palmer v. Chicago, etc., R. R. Co., supra; Carskaddon v. Mills, supra; Morrow v. Sweeney, supra; Indianapolis, etc., R. W. Co. v. Pitzer, 109 Ind. 179; Louisville, etc., R. R. Co. v. Lohges, supra; Citizens' Street R. R. Co., etc., v. Stoddard, 10 Ind. App. 278; City of Indianapolis v. Emmelman, 108 Ind. 530; Penso v. McCormick, supra.
It is not alleged in the complaint that appellant might, by the use of reasonable diligence, have discovered the boy and avoided the injury to him. Neither is it alleged that appellant knew that children were likely to •expose themselves to danger by entering upon the tracks and right of way at this point; nor is there any direct averment that children were in the habit of walking on and along the tracks and right of way with the consent, knowledge, and permission of appellant.
If, however, it were conceded that the complaint was sufficient after verdict, when attacked for the first time in this court, the question remains whether there was, in the light of the principles hereinbefore enunciated, any error in the ruling of the. trial court in sustaining the demurrer to the evidence.
In this connection we quote from Palmer v. Chicago, etc., R. R. Co., 112 Ind. 250, as follows:
“First. The court is bound to accept as true all the facts which the evidence tends to prove, and, as against
“Second. If there is a conflict in the evidence, then only such evidence as is favorable to the party against whom the demurrer is directed can be considered, and that which is favorable to the demurring party is deemed to be withdrawn.”
In one of the leading cases upon the subject, Bulkeley v. Butler, 2 Barn. & C. 434, the court said: “What then is the office of a demurrer to the evidence? It is this: If the party tender a bill of exceptions, the evidence must be left to the jury; but if the party does not wish that, he may withdraw it from their consideration by a demurrer. If, however, he does not demur, he must not be placed in a better situation than if he did. Now, by a demurrer to evidence, all the facts of which there is any evidence are admitted, and all conclusions which can fairly and logically be deduced from those facts.”
The rule was thus stated by Chief Justice Marshall in Pawling v. United States, 4 Cranch, 219: “The party demurring admits the truth of the testimony to which he demurs, and also those conclusions of fact which a jury may fairly draw from that testimony. Forced and violent inferences he does not admit; but the testimony is to be taken most strongly against him, and such conclusions as a jury might justifiably draw the court ought to draw.”
Much to the same effect is the statement of the court in Willcuts v. Northwestern, etc., Life Ins. Co., 81 Ind. 300 (303), that “a demurrer to the evidence admits all facts of which there'is any evidence, and all inferences which can be logically and reasonably drawn from the evidence.”
In a note to 2 Tidd’s Pr. 865, the following statement is made: “The court will also, on the argument of the
Applying these rules, does the evidence considering only that which is favorable to appellee, and yielding to him the full benefit of all the reasonable inferences for which it supplies him a foundation, show that he was entitled to recover? On the question of contributory negligence it may be conceded that the parents were not in fault, and that the boy was bound to exercise only the degree of care which could be reasonably expected of one of his age.
Further, if there is room for difference of opinion, un» der the rules applicable in such cases, between reasonable men, as to the inferences which might be fairly drawn from the facts and circumstances disclosed by the evidence, the question as to whether the boy exercised ordinary care — such care and caution as are usually looked for in other children of like age and capacity with the decedent — was a question for the jury’s determination, and if the jury might have drawn the inference that the boy was in the exercise of ordinary care, the demurrer should have been overruled on this question. Louisville, etc., R. W. Co. v. Sears, supra, and authorities there cited.
In Cleveland, etc., R. W. Co. v. Tort, Admr., U. S. Cir. Ct. of App., the boy was eight years, seven months and six days old at the time he was killed. “He was a strong and healthy boy, and bright and intelligent for his age. * * * The decedent was old enough to be prima facie responsible for his trespasses, as well as chargeable with contributory negligence for a failure to exercise ordinary care, having regard to his age and in
In this case, the presence of the boy on the right of way was not caused by any wrong of appellant.
In Indianapolis, etc., R. W. Co. v. Pitzer, supra, the child, it is true, in the first instance, entered the train without right, but this act did not cause his injury. The conductor, in that case, expelled the child from the train miles from home, and this act, in connection with the wrong of the engineer of the other train in negligently failing to stop the train after he saw the child, when it was within his power to do so, before it was upon the child, unitedly constitute the basis of the reasoning in that decision.
The rule is well settled that every case is to be determined by its own circumstances, and that children are to be held responsible only for the discretion of children.
In this case the boy entered the tracks over cattle guards. The right of way was fenced on both sides. The tracks were elevated, and they were not in or along a street, alley or highway. Trains were frequently moving on the tracks in both directions. There was no evidence tending to show any invitation, allurement or enticement on the part of appellant to the boy to enter on the tracks or right of way at that point. It does not appear that the boy had previously walked thereon, or that he had any knowledge that the tracks or right of way were ever so used' by others with or without the consent or permission of appellant. There is no explanation as to why the boy was there.
In view of the tender years of the boy, we would hesitate to charge him, as a matter of law, with contributory negligence.
The acquiescence or permission of appellant in the
In any event, without further prolonging this opinion, which has reached an unreasonable length, suffice it to say that in our judgment, under the issues, in the light of the authorities cited, appellant was not guilty of actionable negligence and that there was no error in sustaining the demurrer to the evidence. There was no invitation, either express or implied, to the boy to enter and walk on and along the railroad tracks. The principle appears to be that invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it. Bennett v. Railroad Co., 102 U. S. 577.
Judgment of general term of superior court reversed, with instructions to affirm judgment rendered at special term.
Rehearing
Opinion on Petition foe Reheabing.
Counsel for appellee have presented an earnest and able petition for a rehearing, which we have carefully considered. If, through misapprehension of the record, any statements in the original opinion relative to the cattle guard or fences are inaccurate, we were inadvertently, no doubt, misled by counsel, but however this may be, such inaccurate statements, if any, are not of a material character.
Conceding that the ordinance was in the nature of a police regulation and that its provisions applied to all points within the corporate limits, the result under the decisions in this State is the same. Whitson v. City of
It necessarily results then, under the circumstances of this case, that the failure to comply with the requirements of the ordinance, as alleged in the complaint, constitutes negligence and that such negligence was the proximate cause of the boy's death. Chicago, etc., R. R. Co. v. Boggs, 101 Ind. 522.
It may therefore be conceded that the boy was killed through the negligence of appellant, but the fact is he was on the track of appellant, not at a crossing nor in the street, as a mere volunteer or bare licensee without invitation of appellant either express or implied. Cleveland, etc., R. Co. v. Martin, 39 N. E. Rep. 759.
Under these circumstances the appellant owed him no duty to protect him from its mere negligence. Cleveland, etc., R. W. Co. v. Stephenson, 139 Ind. 641; Faris v. Hoberg, 134 Ind. 269.
It should be borne in mind, in this connection, that actionable negligence consists in the failure of the defendant to discharge some duty or obligation resting upon the defendant toward the plaintiff from which injury has resulted. South Bend Iron Works v. Larger, 11 Ind. App. 367.
It is true he may owe the duty to the plaintiff in connection with other persons. Salem and Bedford Stone Co. v. O’Brien, 12 Ind. App. 217.
As we have shown, in the original opinion, appellee could only recover, under the circumstances of this case, for the willful injury of the boy. Pittsburgh, etc., R. W. Co. v. Redding, 140 Ind. 101; Parker, Admr., v. Pennsylvania Co., 134 Ind. 673; Sherfey v. Evansville, etc., R. R. Co. 121 Ind. 427.
The petition for rehearing'is overruled.
Ross, J., concurs in the conclusion.
Dissenting Opinion
While one entering upon the grounds of another as a bare licensee assumes all the hazards of their present condition, such as pitfalls, etc., I am unable to agree that, as to the subsequent active negligence of the owner, even a mere licensee and a trespasser are upon the same footing.
Lotz, J., concurs with Gavin, J.
Filed May 28, 1895.