71 Ind. App. 390 | Ind. Ct. App. | 1919
— This action by appellee against appellant is for damages alleged to have occurred by reason of a grain separator belonging to appellee being struck by one of appellant’s trains.
The amended complaint is in two paragraphs. In the first paragraph it is alleged that the right of way of appellant crossed at right angles a public road in Noble county, Indiana, being the county in which the accident occurred; that it was the duty of appellant to maintain the approach of the public road to and across its right of way in a safe condition and of such grade as to enable the public to cross the right of way, but that appellant carelessly and negligently failed so to maintain the crossing, and that it permitted the rails of its track to so extend above the planks to such an extent that the wheels of vehicles in cross
The second paragraph of the amended complaint'is similar to the first paragraph, But has. the additional averments that, while such separator was thus stalled upon said crossing, one of appellant’s westbound trains approached at a high rate of speed, and at said time the separator was 'in view and in sight of the persons operating the locomotive which was drawing the train continuously from the time that the train was at a point two miles east of said crossing until it reached said crossing, and that the engineer in charge of said engine, By the exercise of ordinary care, could and would have seen the obstruction of said crossing and danger of a collision Between said engine and said grain separator; that in the exercise of reasonable care the said engine and train could have Been stopped by said engineer after it came in sight of said crossing and separator without colliding therewith, But the employes in charge of such train carelessly and negligently failed to stop said train, and failed to observe the obstruction of said crossing By said grain separator, and carelessly and negligently ran said engine and train against said separator, breaking, damaging, and destroying it. At the time of the injury and damage, appellee was engaged in operating the separator, it Being the season of the year in which threshing was done, and that By reason of the damage and injury to said separator it was impossible for the plaintiff to continue and carry on his Business of threshing except By hiring another machine at great expense. There was a demand for
The judgment is affirmed.