Volume 124 — Indiana Appellate Court Reports

1. RAILROADS — <italic>Negligence — Duty to Maintain Watchman or Warning</italic> <italic>Signs or Signals.</italic> — A railroad is under no positive common law duty to maintain flagman or to install light signals or warnings of any kind at crossing to indicate presence of train, unless ordinary care would require that such action be taken because of extra-hazardous nature of crossing. The primary purpose of signals, devices and of watchmen when required to be maintained is to warn travelers on intersecting<page_number>Page 383</page_number> highways that a train is approaching and under ordinary circumstances common knowledge and experience is sufficient to warn that a crossing cannot be used when already occupied. p. 387. 2. PLEADING — <italic>Allegations of Complaint — Railroads — Crossings —</italic> <italic>Extra Hazardous Nature of.</italic> — Where the complaint did not allege that crossing was extra-hazardous, or that there was any rule or regulation by any properly constituted authority requiring flagman be stationed or flashers be installed at such crossing, the failure of the railroad to so install flashers or flagmen would not in itself be negligence which would render company liable. p. 388. 3. RAILROADS — <italic>Negligence — Establishment of Signals — Failure</italic> <italic>to Maintain.</italic> — Mere failure to provide signaling devices, warning of presence of train on track is not negligence in itself, but if the act relates to manner of installation of signals or operation of the same after being voluntarily installed, then negligence can be predicated on such failure to improperly install or improper operation. p. 388. 4. RAILROADS — <italic>Negligence — Warning Signals — Flasher Lights —</italic> <italic>"Stop on Red Signal" as Invitation to Cross.</italic> — The question of whether the railroad company by installing a flasher signal light and posting a sign on said signal to read "Two Tracks — Stop on Red Signal," extended a false assurance of safety and an implied invitation to proceed into intersection when flasher light was not flashing, has not been adjudicated in this state, but as indicated in the case of <italic>Louisville N.R.</italic> <italic>Co.</italic> v. <italic>Revlett,</italic> <cross_reference>224 Ind. 313</cross_reference>, the underlying principle upon which negligence was grounded was the invitation to cross the tracks and such question should be submitted to the jury. From the facts pleaded in the complaint, this Court cannot say that as a matter of law that the installation of signs and signals would not constitute an "implied invitation" to cross the tracks and that a failure to operate such flasher signals when a train occupied such tracks in the presence of such "implied invitation" would not as a matter of law constitute some negligence on the part of the railroad company. p. 389. 5. NEGLIGENCE — <italic>Proximate Cause — Railroad Flasher Signals —</italic> <italic>"Implied Invitation" to Cross Tracks.</italic> — Where question of proximate cause is presented by demurrer or other objection to pleadings, it is one of law for courts, if facts alleged are susceptible of only one inference or where no facts are alleged which justify any reasonable inference that acts or failure of defendant constitute the proximate cause of the injury. The proximate cause linking alleged negligence to the injury, in this case, rests upon reliance of "implied invitation" and false<page_number>Page 384</page_number> assurance that he could enter tracks with safety, and where appellant alleged he was familiar with crossing and flasher lights had previously operated when train was present on track, and that on night of injury the train was obscured from view by rain, darkness and color of cars on tracks, the question of negligence should have been submitted to jury and it was error to sustain demurrer to the complaint. p. 391. 6. NEGLIGENCE — <italic>Proximate Cause — Railroads — Flasher Signals —</italic> <italic>"Implied Invitation" to Cross Tracks.</italic> — If the installation and operation of flasher signals constituted an invitation to enter tracks when flasher was not operating and because of atmospheric or physical conditions, the train was obscured, and traveler was familiar with signals and relied upon such invitation and drove on tracks at reasonable rate of speed, keeping a lookout for trains at crossing, and collision and injury resulted therefrom, the proximate cause became a question for the jury, and the same rule would apply to contributory negligence. p. 391.