Delzell v. Indianapolis & Cincinnati Railroad

Elliott, J. It is insisted on behalf of the appellant that the court erred in overruling the demurrer to the second paragraph’of the answer. The question is, do the facts [51] alleged in the answer constitute a defense to the action? In support of the answer it is argued, that, as the common -council had exclusive power over the streets of the city, and as the right of the railroad company to lay its track across the street was subject to the police powbr of the city corporation, the common council had the right to determine the manner in which the track of the railroad should be laid across the street, so as to render passage over it secure; and the common council having by the ordinance, exhibited as a part of the answer, prescribed the character of the improvement to be made at such'crossings, and required that it should be so made and kept in repair to the satisfaction of the civil engineer, that the railroad company was bound by the ordinance and the direction of the engineer, and had no discretion in the matter; that the company having complied with the ordinance to the satisfaction of the engineer, the work became the work of the city, and not of the railroad company; and, therefore, if it was improperly done, whereby the appellant sustained the injury complained of, the city, and not the railroad company, is responsible. The facts assumed in the argument differ, somewhat, from those jtresented by the pleadings. The common council having exclusive control of the streets of the city, it may be conceded that they might, not only specify the general character of the work to be done by a railroad company in crossing the street with the track of its road, to render it safe to the public in passing over it, but also furnish detailed specifications as to the particular manner in which the work should be executed; and in such case, if the work should be done in strict accordance with the specifications and requirements of the common council, the responsibility for its safety would devolve upon the city. Or the common council might require that the crossing should be constructed under the supervision, control, and direction of the engineer, or other authorized agent of the city; in -which event, the responsibility that it was properly constructed and rendered secure would rest upon the city, and not upon the [52] railroad company. But no such state of facts is shown by the answer in this case. The-second section of the ordinance makes it the duty of a railroad company, in crossing a street of the city, to make the. grade of the railroad track conform- to the established grade of the street, and to pave with boulder stones, or lay down securely strong and substantial planks, between the rails and two feet in width outside thereof, and extend the samé the entire width of the street, or as far as the track may extend; which is to be done and maintained to the satisfaction of the civil engineer- The- object of the requirement, as declared in the fifth section of the ordinance, is, that the railway track may be crossed with more safety and convenience by the public. The ordinance defines the character of the work—that is, the track-way is to be either bouldered ok.-planked—and the extent thereof; and, construing the second.and fifth sections together, the inference is plain that it is to be done in a skilful and proper manner, so as to rendeivthe crossing safe and convenient to the public. It requires the work to be done to the satisfaction of the civil engineer;,but it does not assume to place its execution under his supervision and control, and thereby relieve the railroad.company from the obligation of performing it in a skilful-and.proper manner, so as to render the crossing safe to the public. The answer avers that the defendant, prior to the injury complained of, had complied with the requirement of the ordinance, by laying down securely, at said crossing, strong and substantial planks, between and on either side, for two feet, of the track, and in such a manner that the planks extended, the entire width of said crossing;—doing said planking to the satisfaction of the civil engineer of the city, and i subsequently maintaining the same to the satisfaction of, said engineer. This,does not. meet- the requirements of the ordinance oa-the allegations-.of the complaint. The answer does, not [53] allege that the work was done in such a manner as to render the crossing safe to the public. The second paragraph of the complaint admits that the defendant laid down thick, heavy planks between and on the outside of the rails of said crossing, and fastened them securely, and that it was necessary to leave a small open space of, say two and a half inches,, between the rails and planking on the inside of the track; but it alleges that the planking was done in an unskilful and unworkmanlike manner, in this: that the space between the planks and the rails, on the inside of the track, was made and suffered to-become wider than was necessary for the use of said railroad, and so wide as to be dangerous to horses and teams in passing over and across the track of the railroad, on said street; and that by reason thereof the plaintiff’s horse, when being-carefully driven on the street over said crossing got his forefoot between the rail and plank, where it was held fast, and the horse was thereby thrown upon the track and so injured that he died, &c. The gravamen of the complaint is, that the injury was caused by the planking being done by the defendant in an unskilful and improper manner, thereby rendering the crossing of the track unsafe and dangerous. These facts aré not denied by the answer, and hence they are admitted to be true; but it is sought by the answer to avoid them, under the ordinance, by the averment that the planking was done and maintained to the satisfaction of the civil engineer. In other words, the defendant admits by the answer that the injury complained of was caused by the. planking being done in an unskilful and improper manner, whereby the crossing was rendered unsafe and dangerous, but insists that it is not liable therefor, because the civil engineer of the city was satisfied with the manner in which the work was done. The error of this position seems too apparent to require argument to illustrate it. As it was the -duty of the corporate authorities to see [54] that the streets were kept in a safe condition for travel, the city might, perhaps, be liable for the injury complained of; but if so, still the railroad company cannot escape from liability from its own careless and improper acts, resulting in injury to others, by simply showing that they were satisfactory to an agent of the city authorities. "We are refei'red by the appellee’s counsel to the case of Young v. Inhabitants of Yarmouth, 9 Gray, 386, as being very much in ppint. We do not so regard it. It was a suit by the plaintiff against the town of Yarmouth, for damages occasioned by being thrown from his carriage against a telegraph pole standing in the highway. The pole had been erected by the Cape Cod Telegraph Company, under the general law authorizing the organization of such companies and authorizing them to erect such poles. The law provides, that the location of the poles shall be determined by the selectmen of the towns, when shall specify in writing where the poles shall be located; that the writing shall be recorded in the town; and that the company in building its line shall follow the regulations of the writing.. The court held, that the selectmen, in fixing the location of the poles, were not acting as the agents of the town, but of the public generally, and that their action was conclusive upon all parties; that as- the town had no power to control the subject, or interfere with or remove the poles, their existence upon the highway, if in exact accordance with the regulations- of the selectmen, did not constitute a defect or want of repair in the highway for which the- town was. responsible. In tbe case before us, it was tbe duty of tbe railroad company to plank the crossing in such manner as. to render the use of the street safe to the public, and the complaint is, that the planking was done in such an unskilful and improper manner as to render it unsafe, in consequence of which the injury occurred. Judgment reversed, with costs, and the cause remanded, with directions ta the court below to sustain the demurrer55 to the second paragraph of the answer, and for further proceedings. ¿T. Ij. Ketcham, J. L. Mitchell, and W. A. Ketcham, for appellant. T. A. Hendrieks, O. B. Hord, and A. W. Hendricks, for appellee. ■ Gregory, J., dissents.