176 Ind. 428 | Ind. | 1911
It appears from the record that appellee in 1909 investigated the grade crossing of appellant over the highway running north and south through the town of Topeka, Lagrange county, Indiana, and made an order recommending that appellant within ninety days commence and complete the work necessary to separate the grade of said railroad and the grade of said highway at said crossing, and that this separation be made by constructing said highway under the grade of said railroad, so that “an overhead clearance of at least fourteen feet shall be provided, and so that the roadway so constructed shall be fifteen feet on' each side of the center thereof.”
A copy of this order was served on appellant September 3, 1909. Appellant failed and refused to construct said crossing and to obey said order of appellee. On December 22, 1909, appellee commenced this suit to compel appellant to construct said highway crossing as requested in said order.
It appears from the complaint that appellant owns and controls a line of railroad extending from the city of Detroit, Michigan, to the city of Chicago, Illinois; that said line of railroad runs across Eden and Clear Spring townships in Lagrange county, Indiana, and through the village of Topeka, which lies partly in Eden township and partly in Clear Spring township.
It is alleged in the complaint, among other things, that plaintiff shows the court that defendant is now operating said line of railway, and is, and for a long time has been, engaged in running upon and over said railway through said village of Topeka a large number of trains every day; that it now runs, and for a long time past has run, over its said 'railway, through said village of Topeka, twenty trains within every twenty-four hours; that under defendant’s present schedule it operates over said road through said! village five passenger-trains every day at a speed of from forty to sixty miles an hour, without stopping any of said
Plaintiff shows the court that a public ditch extends from a point near said crossing at a depth below said highway, sufficient to afford drainage for said highway and such an undergrade crossing beneath said railroad track, and that the bottom of said ditch is ten feet below the level of said, highway.
Appellant demurred to said complaint for the following reasons: (1) It does not state facts sufficient to constitute a cause of action; (2) the court has no jurisdiction of the
The demurrer was overruled and exceptions saved as to each specification. Appellant refused to plead over, electing to stand on its demurrer. Thereupon the court entered a decree in favor of appellee, ordering appellant “immediately to construct a sufficient undergrade crossing” as prayed for by appellee.
Appellant filed a motion to modify said decree, for the reasons (1) that the complaint does not state facts sufficient to constitute a cause of action; (2) that plaintiff has no authority under the law to maintain this cause of action, nor is it entitled to such decree; (3) that said decree is not authorized under the facts stated in the complaint, which motion was overruled and exceptions saved.
It is therefore clear that it was the duty of appellant to place and keep said highway crossing in such a condition as not to interfere with the use thereof by the public. It is equally clear, from the authorities before cited, that if said railroad company has restored said highway in an improper manner, but contends that it has done its duty in this respect, it is for the court to determine whether or not appellant has done its duty, and if not, to direct how it shall be done so it may not again fail. Chicago, etc., R. Co. v. State, ex rel. (1902), 158 Ind. 189; Baltimore, etc., R. Co. v. State, ex rel., supra; Chicago, etc., R. Co. v. State, ex rel. (1902), 159 Ind. 237; Vandalia R. Co. v State, ex rel. (1906), 166 Ind. 219, 117 Am. St. 370; Evansville, etc., R. Co. v. State, ex rel., supra.
The averments of the complaint, the truth of which is admitted by appellant’s demurrer, show a condition at said highway crossing that was. a constant menace to the security of persons riding on appellant’s trains, as well as to persons traveling on the highway at said crossing. These facts show a danger of collisions between appellant’s trains and the users of said highway. Every such collision is fraught with danger to the persons carried on appellant’s trains and to said travelers on the highway. Even if, as appellant contends, the railroad commission’s act does not inure to the benefit of the general public, but simply to the public using the railroad, it is clear that the condition set out in appellee’s complaint was a menace to the security of the employes of, and the public traveling on, appellant’s trains, which it was the duty of appellee to investigate and to recommend such reasonable changes at said crossing as would afford security for life and property, and would not interfere with the free use of said highway.
Not only does §5553, supra, provide that if the railroad company refuses to make said changes the commission “may file a bill in equity * * * to require compliance with its order,” but §5550, supra, provides that “the commission is hereby authorized and required to enforce * * * such other laws of this State as shall prescribe the duties and obligations and regulate the conduct of the carriers subject hereto in their dealings with the public and each other as common carriers of passengers and property in this State, and to enable the commission so to do it is hereby given full power and authority to institute and prosecute in its name
The rale declared in the cases just cited is equally applicable to the present one, as it can scarcely be contended that collisions with the users of said highway crossing will be less dangerous to persons riding on appellant’s trains than collisions with animals which are on its tracks by reason of a defective fence. In both eases the danger to the persons aboard its trains arises from appellant’s failure to do its legal duty.
It follows that the court did not err in overruling the demurrer to the complaint or the motion to modify the judgment.
Finding no available error, the judgment is affirmed.