35 Ind. App. 669 | Ind. Ct. App. | 1904
This cause was commenced in the Marshall Circuit Court, from which the venue was changed to the court below. The appellee, Mary A. Martin, sued the appellant to recover damages for a personal injury. A demurrer to the complain^ for want of sufficient facts was overruled. In the complaint, after preliminary matter, it was alleged, in substance, that the appellant’s railroad passed through the county of Marshall and the town of Argos, in that county; that about onerhalf mile east of the town a public highway, running north and south, intersected and crossed the track of the appellant; that as- this highway approached the right of way, another highway connected with the former highway and ran thence east; that it inter
The complaint does not proceed upon the theory that the appellee’s horse was frightened by any unusual or unnecessary appearance or noise, or any negligent or wilful act or omission in connection with the operation of the train; hut it relies upon the assumed liability of the appellant for failure to give the statutory signals at the time and the place prescribed by the statute, whereby the appellee was without warning of the approach of the train, and was induced to drive into dangerous proximity to the approaching train, whereas otherwise she would not have gone to such place, and would not have been injured. There are some allegations, concerning the physical surroundings, inserted to show want of contributory fault on the part of the appellee, while the only negligence attributed to the appellant as the
No question is presented as to the failure of the appellant to perform a duty at common law toward the appellee, but tire only question is whether or not the appellant owed her the duty to give the signals prescribed by statute of the approach of the train to the crossing. It is claimed on behalf of the appellant that the statutory signals required of railroad companies in sounding of whistle and ringing of bell on approaching highway crossings are for the benefit of persons about to use, using, or having lately used the crossing, and not for the benefit of-persons traveling upon public highways parallel with the railroad tracks, or working in fields, and who are not crossing or intending to cross the railroad tracks on the highway. On the other hand, it is claimed on behalf of appellee that the act of the legislature requiring railroad companies, when approaching a highway crossing with their trains, to sound the whistle and to ring the bell, is intended for the protection of persons and their property, whether they intend to cross or not, and that its language is broad enough to apply to persons who may be at or near the crossing with teams.
Our statute, provides: “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
A railroad company, unless specially otherwise required by statute, is entitled to operate its railroad, in such a locality, in the usual manner, without thereby becoming liable to travelers upon highways running parallel with the railroad, or in the. neighborhood thereof, and is only liable, if at all, for injuries to such travelers through unusual or unnecessary causes attributable to negligence or wilfulness. This is necessarily included within the privileges conferred by the granting of a franchise to construct and operate a railroad in such localities. Highway crossings over railroad tracks have
It is plainly not for the benefit of trespassers upon the railway track, however beneficial the warnings might be to such persons. LTor is it within the intent of the legislature to create, by such requirements, a duty of the railroad company toward persons at work with animals in adjoining fields, or persons traveling upon highways near the railroad, not purposing to go upon the crossing; and it is manifest that for persons so situated such noises frequently or ordinarily would not conduce to safety, but, so far as they would produce any effect, would tend to' contribute to danger.
Looking to. the manifest, intention of the legislature, as indicated by the language employed in the statute, and as suggested by the nature of the remedy which was contemplated, we can not conclude that the appellant, owed the appellee a legal duty to give the statutory warnings, of the approach of the train to the crossing. The general language which we have quoted from §5308 Burns 1901, §4021 E. S. 1881, providing for damages to any person or his representatives who may be injured in property or person “by the neglect or failure of such engineer or other person as aforesaid,” is much pressed upon our attention on behalf of the appellee.. We can not regard this provision as. a modification of the remedial purpose of the legislature in the preceding section, or as extending or enlarging the duty thereby created. It is the neglect or failure to perform the duty enjoined in the preceding section which will render the company liable for damages, and if it can not be said to have been intended in the preceding section to create a duty toward a person in the appellee’s circumstances, the person so situated can not be treated as within the protection of the statute.
The decisions in different jurisdictions construing and applying similar statutory provisions, have not been uniform, but the conclusion at which we. have arrived seems to
Judgment- reversed, with instructions to sustain the demurrer to the complaint.