42 Ind. App. 179 | Ind. Ct. App. | 1907
Lead Opinion
Appellant’s passenger depot in the city of Greenfield is located half way between Pennsylvania street on the east, and Mechanic street on the west. In front of the depot the appellant has built, for the accommodation of its business, a substantial brick platform, from twelve to sixteen feet wide, and extending from Pennsylvania street to Mechanic street, which, from its location and manner of
It is urged, among other things, in support of this reason, that the evidence shows, without contradiction, that the place where appellee was injured belonged to the railroad company exclusively, and that the appellee had no legal right on the premises, his business there being in no manner connected with the business of the company, and that, therefore, the company owed him no duty except to refrain from committing a wilful injury. This raises the question as to whether the platform or sidewalk, upon which appellee was walking at the time of his alleged injury, was on a public street of the city of Greenfield.
Appellant insists, however, that the evidence shows that this use is only such use as is habitually made by the public of the railroad company’s private right of way, wherever the same remains open and is convenient for public travel. This insistence is probably true, and if it were shown that the appellant was the legal owner of these grounds, as its right of way, the evidence would not be sufficient to establish a right in the public to use the way. But such is not the question here. Here the appellant has never been granted the exclusive right of way over these premises by any person authorized to give it such right. On the contrary, the premises were dedicated by the owner to the public. In the case of a use for travel by the public of a railroad company’s private right of way, the legal right to the way is in the company. The public have only a permissive use. In this case the. public have the right to the way, and the railroad company is but a permissive user. The question is, whether the .user by the public is an acceptance of the dedication. That such acceptance can be as- effectually shown by such a continuous user, as in any other manner, is well settled in the cases of Summers v. State (1875), 51 Ind. 201; Strunk v. Pritchett (1901), 27 Ind. App. 582. And see Elliott, Roads and Sts. (2d ed.), §154, and cases cited.
Appellant introduced in evidence a copy of the proceedings of the common council of the city of Greenfield at a meeting held March 6, 1901, as follows:
“Be it resolved, by the common council of the city of Greenfield, that whereas Railroad street in said city, so-called, between Pennsylvania street and Mechanic street, has been platted as a street, but that the same has never in fact been accepted, used or improved as a street by the city or town of Greenfield, or by the public authorities, and said city has never claimed or exercised jurisdiction over it as such, and the same has always been as it now exists between said Pennsylvania and Mechanic streets, used, occupied and held exclusively for railroad purposes, and that the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, now the owner of and operating the railroad passing through said city and over and upon the ground before described, and 'that said railway company is proposing to construct a new passenger station upon its grounds, lots numbered six, seven, eight and nine of Pierson’s addition to said city, and in the construction thereof it will be necessary that said company occupy with its buildings, platforms and tracks a part of the ground south of its said grounds, consisting of lots numbered one to ten, inclusive, in said*189 Pierson’s addition, said new station and depot and facilities 'being found to be needed for the accommodation of the public, and of great benefit and improvement to said city, and said railway company, desiring to be fully protected in its use of said ground, so to be used and occupied for its said new station and facilities connected therewith; now, therefore, for the purpose of disclaiming any and all right in said city in said ground, and any and all jurisdiction over the same as a street, and fully to protect said railway company, its successors and assigns in the full use thereof, it is now and be it resolved that said city does fully disclaim all rights in and jurisdiction over the said ground as a street, and does declare the truth of the foregoing facts recited, and that it will not in future make any claim thereto as against said railway company, its successors or assigns, and that full and complete authority is now and hereby granted to said railway company, its successors and assigns, to use and occupy said ground between said Pennsylvania and Mechanic streets for its depot and platforms and station facilities, fully and freely in all respects. And that this authority shall be irrevocable and shall at all times fully protect said company, its successors and assigns, in such an occupancy against any and all claims by‘said city at any time of right in or jurisdiction over said ground as a street or public highway.”
Our attention is particularly directed to the case of Muster v. Chicago, etc., R. Co. (1884), 61 Wis. 325, 21 N. W. 223, 50 Am. Rep. 141. In that case the plaintiff was engaged at work on a scaffold at the defendant’s depot. A mail clerk threw a mail sack from a passing mail-train, which struck and knocked down the scaffold, injuring the plaintiff. It was averred in the complaint that the postal clerks were in the habit of throwing off the mail at the depot, and that the practice was dangerous and was known to the defendant, and permitted without objection from it. The evidence showed that the mail had never been thrown off at the depot before, but at the mail catch 200 feet away, and there is nothing in the case tending to show that any danger was to be apprehended at the place where the mail was customarily discharged.
The distinction between this case and the case of Muster v. Chicago, etc., R. Co., supra, is that in this ease the evidence affirmatively shows that at the point where the mail sacks were customarily discharged there was danger of injuring persons by throwing them from the moving trains, while in the case cited the evidence does not disclose that the place where the mail sacks were discharged was one where danger of injury to any person could reasonably have been apprehended.
Among other reasons given for a new trial was the introduction in evidence of a speed ordinance of the city of Greenfield. Admitting that this evidence was incompetent,
The evidence shows that the appellee was walking along a wide platform, and that he was several feet away from the edge of the platform next to the appellant’s road in a place where he would be amply safe and secure from the passage of the train. He knew the train was coming, but he had no reason to apprehend that the train would either leave the track and injure him, or that somebody on board the train would throw a missile from it and strike him. There is no ground for holding the appellee guilty of contributory negligence. The evidence in this case shows, without contradiction, that the appellee, while passing along the company’s platform, at a safe distance from the company’s track, was struck and severely injured by a mail sack thrown by a postal clerk from a mail-ear passing at a high rate of speed over the appellant’s road; that it had been for more than two years the custom of the mail clerks on this road to throw off the mail sacks upon this platform, along which the public passed daily and hourly; that the place where the platform was built was a part of a public street that had been dedicated to the public use as a street many years before, and that it had been constantly and «entinuously used
These facts appearing without controversy, require the court to affirm this judgment, although there may be intervening errors of the court in the admission of evidence or instructions given to the jury.
Judgment affirmed.
Rehearing
On Petition for Rehearing.
Petition for rehearing overruled.