# Budkiewicz v. Elgin, Joliet & Eastern Railway Co.

> Indiana Supreme Court · June 10, 1958 · 238 Ind. 535

URL: https://www.frixlaw.com/law-library/cases/9718743

## Case

- **Full name:** Budkiewicz v. Elgin, Joliet and Eastern Railway Company
- **Court:** Indiana Supreme Court
- **Decided:** June 10, 1958
- **Citations:** 238 Ind. 535; 150 N.E.2d 897; 1958 Ind. LEXIS 261
- **Precedential status:** Published
- **Opinion:** Dissent by Achor
- **Judges:** Emmert, Landis, Arterburn, Achor, Bobbitt
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9718743

## Opinion text

Dissenting Opinion
Achor, J.
I am of the opinion that the complaint fails to state a cause of action under either of the specific acts of negligence upon which the majority opinion is predicated. The first such act of negligence is the assumed violation of §10-3904, Burns’ 1956 Repl. [Acts 1905, ch. 169, §666, p. 584], which prohibits Railroads from permitting their trains to remain standing upon highway crossings. However, with regard to this issue the appellant has not alleged in his complaint or contended either in his briefs or in oral argument that the negligence complained of constituted a violiation of this statute. Rather, the specific act of negligence alleged in the complaint and relied upon in appellant’s written and oral arguments is the alleged violation of a common-law duty “to warn plaintiff [appellant] of the particular peril” which existed by reason of appellee standing a black car upon the crossing at night, which condition allegedly created a situation of entrapment.
This court has heretofore consistently -maintained the position that issues not presented in the argument section of appellant’s brief as required by Rule 2-17 of this court are waived. Indiana State Toll-Bridge Commission v . Minor (1957), 236 Ind. 193 , 139 N. E. 2d 445 ; Greenwood v. City of Washington (1952), 230 Ind. 375 , 102 N. E. 2d 642 ; Gross Income Tax Div. v. Conkey Co. (1949), 228 Ind. 343 , 88 N. E. 2d 563 , 90 *548 N. E. 2d 805 . As a general policy this court has refused to decide cases on the basis of issues not presented to the trial court nor argued by the parties on appeal. 1 The policy is grounded upon substantial reason. In fairness to the losing party he should have an opportunity to present the contrary position and the. court should be advised on all aspects of the issue before-stating an opinion. However, since the case has been decided in the majority opinion on the basis of the statute [§10-3904, supra], as well as under the common law,, and since I am of the opinion that the facts alleged do-not state a cause of action under either of said acts of' negligence, it is necessary that my dissent employs consideration of both such acts.
It occurs to me that the question as to whether the. facts alleged constituted a cause of action under the statute has been well established to the contrary in the case of C. C. C. & St. L. Ry. Co. v. Gillespie (1930), 96 Ind. App. 535, 541-542, 547, 551 , 173 N. E. 708 . Although that case was decided by the Appellate Court,, the same issues were presented to this court on petition to transfer and the petition was denied. 2 The facts and issues in that case are in marked similarity with those in the present case. 3 In the Gillespie case, supra, the *549 court specifically held that allegations that cars were “standing across” the intersecion are not sufficient to allege a violation of §2903 [§10-3904, supra]. 4
*550 The. .construction placed upon the. statute in-the Gillespie case, supra, is based upon substantial reason, and the fact that the legislature has permitted the decision to stand nearly three decades without change is evidence that the construction has met with the approval of the legislature.
It is suggested that the Gillespie case, decided by the Appellate Court, is in conflict with, decisions of this court. • I am obliged to take a contrary position. While it is true 'that this court has stated on séveral occasions that the'violation of the statute [§10-3904, supra] was negligence p.er se, in none of said cases did this court undertake to construe the statute by defining the facts necessary-to constitute a violation. See: Central Indiana R. Co. v. Wishard (1917), 186 Ind. 262 , 114 N. E. 970 .
Furthermore, it is asserted that this case and the Gillespie case, supra, are distinguishable upon the pleadings. However, in my opinion the eases- are alike in all material aspects. As we have noted, the facts alleged and'the issues presented in this and the Gillespie case were almost identical. In both cases it is alleged that the railroad cars were standing upon the crossing; that it was nighttime and that the cars were painted black and that the asphalt was black. In- each instance the automobile was driven into the side of the cars standing across the highway. In each case it is contended that the facts constituted an' exceptional hazard which- imposed a duty upon the railroad to give the driver of the vehicle upon the highway some notice or *551 warning. In neither case was there a motion- filed to make the complaint more specific and in each case the sufficiency of the complaint was contested by:demurrer. In the Gillespie case, supra, the courts construed the statute and considered the allegations of the complaint and concluded the allegations were not sufficient to state a cause of- action within the statute. (§10-3904, supra.)
In reaching the above conclusion in the Gillespie case, supra, the court employed the well established rule that to maintain'an action in damages based-upon the violation of a specific statute the pleader must bring himself within, the clear provisions of the statute, State ex rel. Ayer v. Ewing (1952), 231 Ind. 1 , 106 N. E. 2d 441 , or if conditions or exceptions exist, in the enacting clause of the statute the pleader must negative the existence of such conditions or exceptions'in- order to state a cause of action. 5 Consistent with this reasoning the decision in the Gillespie case, supra, is grounded upon, the facts, first, that the statute [10-3904] is expressly made to apply to circumstances where railroad-' cars are permitted to “remain- standing” on crossings as contrasted with those which temporarily stand upon crossings in the current operation of the cars. In- this regard it is to be noted that the word “remain” which qualifies the “standing” of such cars is defined in- Webster’s New International Dictionary as follows: “To be left after others have been removed' or -destroyed; to be left after a number or quantity has been subtracted or cut off. ... To stay *552 behind while others withdraw.” Secondly, the court in the Gillespie case, supra, reasons that since other statutes [§55-618, Burns’ 1951 Repl.] confer upon the railroads the right to acquire right-of-way and to construct roads and operate trains across public highways that as a necessary incident to such operation the temporary standing of cars across public highways is necessarily implied and authorized. It therefore follows that the stopping and/or standing of trains across public highways, other than for an unreasonably long period of time, is a condition or exception necessary to and incorporated within the statute [§10-3904], which condition or exception the pleader is obliged to negative in order to allege a violation of the special statute. This the appellant, in this case, failed to do, and for that reason I am of the opinion he has not stated a cause of action within the statute. 6
*553 The next question is, did the complaint state a cause of action against appellee railroad under the common law? Clearly no facts are alleged which constitute a state of “entrapment,” since it is not alleged that, either directly or by inference, it had knowledge of the facts complained of. True, our courts have, on several occasions held that it is the duty of the employees of the railroad company to exercise ordinary care in the operation of trains, and that failure to so exercise such care may constitute negligence. Pennsylvania R. R. Co. v. Sherron (1952), 230 Ind. 610 , 105 N. E. 2d 334 ; New York Central R. R. Co. v. Casey (1938), 214 Ind. 464 , 14 N. E. 2d 714 ; Pittsburgh, etc. R. Co. v. Pence (1916), 185 Ind. 495 , 113 N. E. 7 ; The Toledo and Wabash Railway Company v. Goddard (1865), 25 Ind. 185 ; Evansville, etc. R. Co. v. Hoffman (1914), 56 Ind. App. 530 , 105 N. E. 788 ; Virgin v. Lake Erie, etc. R. Co. (1913), 55 Ind. App. 216 , 101 N. E. 500 . However, with the exceptions hereinafter enumerated this rule has only been applied to the operation of trains which are also approaching the crossing.
The exceptions to the rule have been made under circumstances where, in addition to the mere color of their cars standing upon a crossing, either the crossing was hazardous in itself, the cars had stood for a long period of time, or the railroad knowingly created a situation which erroneously induced the person traveling upon the highway to believe that he could traverse the crossing with safety, as in the cases of Gillies, by next friend v. N. Y. C. R. R. Co. (1954), 124 Ind. App. 382 , 116 N. E. 2d 555 ; Louisville & N. R. Co. v. Revlett (1946), 224 Ind. 313 , 65 N. E. 2d 731 ; New York, etc. *554 R. Co. v. Shields (1916), 185 Ind. 704 , 112 N. E. 762 , and Vandalia R. Co. v. Baker (1912), 50 Ind. App. 184 , 97 N. E. 16 . The mere color of the cars standing upon a crossing has not been considered to provide this exception. .
With the above exceptions, the common-law mule of negligence has not been applied to trains .or cars ¡ which are already occupying crossings when vehicles upon the highway approach such crossing. Carmichael v. R. & O. R. Co. (1951), 121 Ind. App. 463 , 98 N. E. 2d 698 ; Morley v. C., C., C. & St. L. R. R. Co. (1935), 100 Ind. App. 515 , 194 N. E. 806 ; Pennsylvania Railroad Co. v. Huss (1932), 96 Ind. App. 71 , 180 N. E. 919 ; New York Central R. R. Co. v. Casey, supra. In the Gillespie case, supra, even though the cars were blade- and they stood on the crossing for three minutes .during switching operations, the court held that, as a matter- .of law, “the evidence presents a situation as far as -appellant is concerned ... . unattended by negligence ¡ on its part.”
For an exhaustive study of this question, see 161 A. L. R., “Liability of railroad for injury' due-to" road vehicle running into train or car standing oh highway crossing,” “d. Railroad’s negligence as jury Question,” pp. 138-139, 141-142. This treatise summarizes the law as follows:
“Disregarding mere statements of rules and considering the actual holdings, in only about one fifth of the cases have courts recognized, that the circumstances presented a jury question concerning the negligence of the railroad, or that the complaint in the case was not demurrable." (Our italics.)
In each of the “one fifth of the cases” cited .in the above treatise, in other cases cited by the. parties' and *555 in other cases- which have otherwise come to our attention,'/.there have been other acts of negligence in addition To-the -mere color of the cars or the fact of their standing upon the crossing which have . constituted the negligence complained of and thus made the allegations of negligence sufficient to present a jury question.
As heretofore stated, the reasoning upon which actions such as this have been held demurrable has not been consistent. However, the decisions have been born of practical necessity. There is reason why the same rules,.of. common law negligence which are applied in motor vehicle cases may be applied to railroads. Railroads are the arteries which carry the heavy commerce of our country. They are necessary to the national economy' and- national defense. They are required to acquire | their own rights - of - way by purchases and public-grant.- Their operations began after the development of much of the common law of negligence. The costs and methods of operating railroads are of a size and complexity not readily comprehended by the ordinary reasonable person who serves as a juror. Therefore, the - courts have considered it necessary in nearly every instance that the standard of care required by railroads for the protection of the public with respect to their crossings, be specifically stated by the legislature or - other public authority in order that the responsibility of railroads and the public may be clearly defined, and that within this standard of care the duty and liability of each shall be clearly defined and the railroads shall not be harassed by unwarranted actions of persons who drive into the side of their trains.
For these reasons, I am of the opinion that the law should be changed only by legislative enactment. The diligent adherence of our courts to the doctrine -of stare decisis has established our courts as the stabiliz *556 ing force of our society. It occurs to me that the law controlling of this case has now been so firmly established under the doctrine that it should not be disturbed, except by legislative enactment.
Bobbitt, C. J., concurs.
Note.—Reported in 150 N. E. 2d 897 .
. Rule 2-17. See: Tinder v. Clarke Auto Co., (1958), 238 Ind. 302 , 149 N. E. 2d 808 .
. In the Gillespie case ( 96 Ind. App. 535 ), transfer was asked on two basic grounds: (1) That the Appellate Court erroneously decided a new question of law, to-wit: That the mere allegation that the railroad stopped one of its trains and allowed its freight cars to stand across the highway did not constitute a violation of §2903 [§10-3904, Burns’ 1956 Repl.] and. therefore that the mere allegation of such fact did not constitute negligence per se; (2) that under the common law the facts presented “a condition unattended by negligence on its (the railroad’s) part” which resulted in the injury.
. The allegations as taken from the appellant’s brief in the Gillespie case were as follows: “. . . That the night was dark and heavy rain was falling on the asphalt pavement with which said South Huntington Street was paved at said place *549 and at said time. That the lights from the lamp posts on the said bridge were burning and were reflected up in the faces of this plaintiff and the other occupants of said car. pp. 4-5 Appellant’s Br.
“That at the time said automobile was being driven toward said switch of said defendant, the employes of said defendant, acting in the scope of their employment for said defendant, had moved a string consisting of a number of freight cars, on the east end of which a track crosses said South Huntington Street in said city. That said freight cars were standing across said track and blockading and wholly obstructing said street and that said employes or train crew in charge of said locomotive and cars negligently stopped said cars over and in such a manner as to obstruct said highway. That said employes knew, or by the use of reasonable care could have known, that it was highly dangerous to the public using said highway to permit the said ears to remain standing on said crossing. That said train crew so employed by said defendant negligently failed to place any flagman or other person with a lantern and failed to place any light on the said highway on the north side of said ears as a signal to approaching vehicles and to warn the public of the dangerous situation.” (pp. 4-5 appellant’s brief.)
. “The legislature has given to the railroad companies the right to construct their roads upon or across any public highway. See §12948, Burns’ 1926 [§55-618, Burns’ 1951 Repl.]. Certain duties are required of a railroad when its tracks cross any street, avenue or alley in any incorporated town. The right so conferred necessarily implies that the railroad company is authorized to operate its locomotives engines, trains and cars on the tracks on and over such crossings, subject to such regulations as prescribed by the legislature, and with due regard for others whose rights are equal in the use of the ‘King’s highway.’ Jacobson v. N. Y. S. & W. R. Co., supra (87 N. J. Law 378, 94 Atl. 577 ); Philadelphia & R R. Co. v. Dillon, supra (1 W. W. Har. (31 Delaware) 247, 114 Atl. 62 , 15 A. L. R. 894).” (96 Ind. App. at p. 547.) ( 173 N. E. 713 .)
“. . . In the case of Ezra v. Manlove (1845), 7 Blackford, 389, the Supreme Court said: ‘It is a general rule that in asserting a right founded on a statute, the pleader should aver every fact necessary to inform the Court that his case is within it.’ An examination of the several allegations contained in appellee’s complaint fail to disclose that appellee has brought herself within the law in charging the violation of §2903 supra [§10-3904]. The offense defined in the first part of the above mentioned section is in permitting the train of cars to remain standing across the street or public highway so as to prevent the use and enjoyment of the street or highway by the citizens, as a public thoroughfare. (Italics furnished.) Momentarily stopping a freight train or cars on a public street, highway, etc., is not a violation of §2903 supra. The appellee, by the averments of her complaint, *550 charges .that the cars were ‘standing across.’ The allegations are not sufficient to allege a violation of §2903. (Our italics.) Cleveland R. R. v. Taurer (1911), 176 Ind. 621 , 96 N. E. 758 , 39 L. R. A. (N. S) 20; Becker v. State (1904), 33 Ind. App. 261 , 71 N. E. 188 ; C. C. C. & I. R. R. v. Wynant (1885), 100 Ind. 160 .” (at pp. 541-542.) ( 173 N. E. 711 .)
. “. . . If, .-. . the plaintiff’s cause of action cannot he accurately alleged .without reference to the exception,, he .must allege sufficient facts to show that he is not within it. And if he relies upon an, exception to a general rule, he must state the facts which bring h,is. case within the exception.” 41 Am. Jur. §85, p. 351.
. “. . . . It is well settled that a plaintiff is only entitled to recover, in an action for damages predicated on negligence, by proof of one or more of the specific acts of negligence alleged in his complaint, and that a failure to make such proof will defeat his right of action, no matter what other acts of negligence are disclosed by the evidence. Indianapolis, etc., Transit Co. v. Derry (1904), 33 Ind. App. 499 , 71 N. E. 912 ; Chicago, etc., R. Co. v. Thrasher (1904), 35 Ind. App. 58 , 73 N. E. 829 ; Plummer v. Indianapolis Union R. Co. (1914), 56 Ind. App. 615 , 104 N. E. 601 ; . . . Terre Haute Electric Co. v. Roberts (1910), 174 Ind. 351 , 91 N. E. 941 ; Indianapolis Traction, etc., Co. v. Mathews (1911), 177 Ind. 88 , 97 N. E. 320 ; Sandy River, etc., Coal Co. v. Caudill (1901), (Ky.) 60 S. W. 180 ; Savanna, etc., R. Co. v. Tiedeman & Bro. (1897), 39 Fla. 196 , 22 South. 658 ; Louisville, etc., R. Co. v. Wade (1903), 46 Fla. 197 , 35 South. 863 ; Northern Milling Co. v. Mackey (1901), 99 Ill. App. 57 ; Chicago, etc., R. Co. v. Mock (1874), 72 Ill. 141 . The giving of this instruction violates this rule, as its reasonable interpretation would lead the jury to believe that it was its duty to return a verdict for appellee, on a finding that his injuries were caused by any negligence of appellant, regardless of the allegations of the complaint. The giving of it was therefore error. . . .” Indianapolis, etc., Traction Co. v. Sherry (1917), 65 Ind. App. 1, 4-5 , 116 N. E. 594 -595.
“A plaintiff must recover according to the allegations of his complaint, or not at all. In actions founded upon the alleged negligence of the defendant, the plaintiff cannot charge one *553 kind of negligence and prove another. Cleveland, etc., R. Co. v. Wynant, 100 Ind. 160 ; Armacost, Adm. v. Lindley, Adm., 117 Ind. 295 .” Thompson v. Citizens Street R. Co. (1889), 152 Ind. 461, 465 , 53 N. E. 462 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9718743. Public record. Not legal advice.