168 Ind. 333 | Ind. | 1907
Appellant appeals from a judgment rendered in favor of appellee for personal injuries alleged to have been caused by the negligence of the appellant. The complaint was in two paragraphs, but there is no controversy but that the verdict rests upon the first. This paragraph was assailed by a motion to make more specific, and by a demurrer for want of facts, each of which was overruled and forms the basis of an assignment. The substance
The defendant moved that the court below require the plaintiff to make his complaint more specific, by stating in what respect “defendant knowingly and negligently operated said switching device, * * * and knowingly and negligently maintained said switching device,” and “its employes negligently and carelessly failed to keep a watch ahead,” and “negligently and carelessly failed to be at their post of duty.”
The maintenance and operation of an unblocked switch knowingly at a much-frequented place, and knowingly backing a train over the place without looking ahead of the moving ears, constitute the negligent acts complained of, and we are at a loss to see how an amplification of details, beyond what is given in the complaint, could increase the defendant’s knowledge, or strengthen it in the preparation of its defense. We, therefore, think the court did not err in overruling the defendant’s motion to make the complaint more specific.
The status of the plaintiff on the railroad at the time of his injury is therefore an important and material inquiry.
It may be said that the company in the construction of the fence had some object in view. It could not have been to restrain animals .from going onto the right of way. There was no fence on the east side of the road, no cattle-guards, and nothing to prevent stock from passing through the gateway and around the ends of the fence at Main and south II streets. It may be said that it was objectionable to the company for the residents along its road to wander promiscuously and at random across the railroad on errands, and to and from their work, and that it erected the fencé as a means of enforcing its discontinuance; and it is not improbable that, while engaged in constructing the
The gateway was constructed in a direct line to the business part of tlie city and at a place acceptable to the citizens, as was shown by the previously worn and beaten path. The gateway had been much used for ten years, and many people had been passing through it daily, with the knowledge of the company and without any' objection or sign of disapproval.
These facts and circumstances, and the inferences that naturally and properly arise therefrom, were proper subjects for the consideration of the jury, and we are unable to say that they were not warranted in finding that the company constructed and maintained the open gateway as an implied invitation, to all persons desiring to go to the other side of the railroad, to come that way. And that the plaintiff, even though regarded as an adult, having resided in the immediate neighborhood for years, had the right to act upon appearances, and rely upon the belief that he had the right to pass that way. As was said in Indiana, etc., R. Co. v. Barnhart (1888), 115 Ind. 399: “An implied invitation may be inferred from some act or line of conduct, or from some designation or dedication.” See a large number of cases collected at page 408. 3 Elliott, Railroads, §§1248-1250.
Judgment affirmed.