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for use. Chicago Ry. Co. v. State, 158 Ind. 189; Chicago Ry. Co. v. State, 159 Ind. 237; Baltimore R. R. Co. v. State, 159 Ind. 510; Chicago Ry. Co. v. Leachman, 161 Ind. 512; Southern Ind. Ry. Co. v. McCarrell, 163 Ind. 469; Wabash R. R. Co. v. De Hart, 32 App. 62.
Railroad companies are required to keep highway crossings in repair when the highways are established after the railroads are built. Baltimore R. R. Co. v. State, 159 Ind. 510; Lake Erie R. R. Co. v. Shelley, 163 Ind. 36.
Railroad companies may be compelled by mandate to keep highway crossings over their roads in good condition for use when the law makes it their duty to do so. Chicago Ry. Co. v. State, 158 Ind. 189; Baltimore R. R. Co. v. State, 159 Ind. 510.
Railroad companies may be compelled by mandate to change the grade of their roads so as to conform to the grades of streets. Chicago Ry. Co. v. State, 159 Ind. 237.
Railroad companies, in constructing their roads across watercourses, are required to use due care to avoid injuring the property of others, but such companies are not held as insurers against all injury or damage. Cleveland Ry. Co. v. Wisehart, 161 Ind. 208.
If a railroad company institutes proceedings to obtain a right to build its road across the tracks of another railroad company, an appeal will not lie from an award in such proceedings while exceptions to such award are pending. Wabash R. R. Co. v. Cincinnati Railroad, 29 App. 546.
[Acts 1903, p. 271. In force March 9, 1903.] 5153a. Operating as interurban electric railway.-1. That whenever any railroad company, heretofore or hereafter organized under the general railroad laws of the state of Indiana, but operating or intending to operate as an interurban electric or street railway, shall desire to avail itself of the rights, privileges and powers and subject itself to the duties, obligations and liabilities of interurban electric or street railway companies, organized under the laws of the state of Indiana relating thereto, it shall be lawful for such company by a vote of its board of directors, with the unanimous consent of the stockholders, to effect such change by causing to be filed in the office of the secretary of state a certificate reciting such desire and the action of such board, signed by the president and a majority of the board of directors and attested by the secretary and the seal of such company: Provided, That nothing herein shall be construed so as to permit either company to operate as both a steam railroad and an interurban electric or street railway: And provided, further, That at the time of filing such certificate such company shall pay to the secretary of state, for the benefit of the state, the same fees required to be paid for filing the articles of incorporation of a company with the same authorized capital stock.
5153b. Privileges and obligations.-2. From the time of filing such certificate such company shall be entitled to all the rights, privileges and powers and subject only to the duties, obligations and liabilities of interurban electric or street railway companies, organized under the laws relating thereto, as aforesaid: Provided, That nothing in this act contained shall in any manner affect any suit pending by or against such company or any rights held by it at the time the certificate herein provided for shall be filed as aforesaid.
[Acts 1905, p. 45. In force April 15, 1905.] 5153c. Hauling freight by steam.-1. That any railroad company heretofore organized under the general railroad law, and which has heretofore availed itself of the provisions of the act of March 9, 1903, authorizing such railroad companies to operate as interurban, electric or street railways, shall have the right to haul freight, freight cars and trains by steam locomotives.
5158a. Railroads crossing each other.
The act of 1897, sections 5158a-5158h, Burns' R. S. 1901, regulating proceedings when one railroad company desires to cross another railroad, and the construction of interlocking switches, does not apply to electric railways when they desire to cross the tracks of steam railroads. Wabash R. R. Co. v. Ft. Wayne Co., 161 Ind. 295.
In an application under section 5158a, Burns' R. S. 1901, to obtain the right to construct a railroad across another railroad, the court has power to determine how the crossing shall be made. Cincinnati Railroad v. Wabash R. R. Co., 162 Ind. 303; Wabash R. R. Co. v. Cincinnati Railroad, 29 App. 546.
If proceedings are commenced by a railroad company to obtain the right to cross the tracks of another company, and the parties agree to submit to commissioners the question of the practicability of constructing an over-grade crossing, and the amount of damages for such a crossing and damages for a crossing at grade, such commissioners have no authority to consider the question of carrying the road of the petitioner under the tracks of the other company. Baltimore R. R. Co. v. Wabash R. R. Co., 31 App. 201.
5160. Appropriation of land.
Proceedings to appropriate land under the right of eminent domain are special in their nature, but the provisions of the civil code in matters of practice may be called in aid of the special statutory provisions. Great Western Co. v. Hawkins, 30 App. 557.
If only an easement may be acquired in land under appropriation proceedings, an instrument of appropriation asking for a fee is fatally defective. Great Western Co. v. Hawkins, 30 App. 557.
If a railroad company seeks to appropriate a right of way across the track of another railroad company, all the right and power of the owner of the track is to see that the proceeding is regular, and that the compensation awarded is paid; and if the compensation assessed is deemed too small, exceptions may be filed, and an appeal taken, but the appeal does not prevent possession by the petitioner, and the only question on appeal is the amount of damages. Cincinnati Railroad v. Wabash R. R. Co., 162 Ind. 303.
If a land owner excepts to the damages awarded for a right of way, and appeals to the circuit court, and then withdraws his exceptions and dismisses the appeal, he may then sue the railroad company and recover damages on account of the appropriation of his land. Chicago Ry. Co. v. Patterson, 26 App. 295.
An assessment of damages for lands appropriated for a railroad right of way includes the buildings on the land and vests the title in the same in the railroad company. Stauffer v. Cincinnati R. R. Co., 33 App. 356.
In fixing the amount of damages for lands appropriated for a railroad right of way, the benefits that accrue to the remaining land of the land-owner can not be considered. Chicago Ry. Co. v. Winslow, 27 App. 316.
If a circuit court refuses to appoint appraisers to assess damages for lands to be taken by a railroad company for a right of way, an appeal can not be taken from such order. Lafayette Ry. Co. v. Butner, 162 Ind. 460.
If a railroad company takes exceptions to the amount of damages assessed for lands taken, the company may pay the damages assessed to the clerk of the court, take possession of the land, and then appeal to the circuit court and contest the amount of the damages. Cleveland Ry. Co. v. Nowlin, 163 Ind. 496.
If exceptions are filed to an award of damages for land appropriated for a railroad right of way, an appeal can not be taken from the judgment of the circuit court until such exceptions are finally disposed of. Wabash R. R. Co. v. Cincinnati Railroad, 29 App. 546.
[Acts 1903, p. 218. In force April 23, 1903.] 5171. Altering route, maps.—1. If at any time after the location of the line of any railroad, chartered by this state, and the filing of the map thereof, it shall appear to the directors of such company that the line thereof is unnecessarily dangerous, inconvenient or expensive to operate, by reason of unavoidable causes, grades or serious errors in location, such directors may make local alteration of the line, and cause a new map to be filed in the office where the map showing the first location is filed, and may thereupon take possession of the lands embraced in such new location which may be necessary for the construction and maintenance of such road on such altered line, either by agreement of the owner or by such proceedings as are authorized by the charter of such company, and may use such new line in place of the one for which it is substituted. But nothing in this act shall be so construed as to confer upon such railroad company any power to locate its road on any route which would not have been authorized by its charter; and nothing in this act contained shall authorize such company to make a location of its track within any city without the consent of the common council of such city; nor to change its road so as to avoid any point named in its charter: Provided, further, That in all cases where any railroad company has heretofore, or may hereafter, make any such alterations as are provided for in this act the board of county commissioners of the county in which such alterations are made may locate a public highway on the old line or route of such railroad for which such new line is substituted, by the same proceedings and on the same terms as public highways are now, or may be hereafter located. 5172a. Railroad street crossings, grading.
Railroad companies are required to keep highway and street crossings in a safe condition for use. Chicago Ry. Co. v. State, 158 Ind. 189; Chicago Ry. Co. v. State, 159 Ind. 237; Baltimore R. R. Co. v. State, 159 Ind. 510; Chicago Ry. Co. v. Leachman, 161 Ind. 512; Wabash R. R. Co. v. De Hart, 32 App. 62.
Mandate will lie to compel a railroad company to change the grade of its tracks so as to conform to the grade of a street. Chicago Ry. Co. v. State, 159 Ind. 237.
[Acts 1903, p. 217. In force April 23, 1903.j 5185a. Brakes on engines and trains.—1. That from and after the first day of January, 1904, it shall be unlawful for any person, firm, company or corporation engaged in commerce by railroad from one point to another in this state to use on its line any locomotive engine from one point in the state to another point in the state unless such locomotive is equipped with proper driving wheel brake and appliances for operating the train brake system, or using any train in such traffic after said date that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can not control its speed without requiring trainmen to use the common hand brake for that purpose.
5185b. Automatic couplers.—2. That on and after the first day of January, 1904, it shall be unlawful for any such person, firm, company or corporation to haul or permit to be hauled, or used on its line, any car used in moving traffic from one point within this state to another point within this state, not equipped with couplers, coupling automatically, by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.
5185c. Cars of connecting roads.--3. That when any person, firm, company or corporation engaged in commerce within this state by railroad shall have equipped a sufficient number of its cars so as to comply with the provisions of section one of this act it may lawfully refuse to receive from any connecting lines of road or shippers any cars not equipped sufficiently in accordance with the first section of this act, with such power or train brakes as will work and readily interchange with the brakes in use on its own cars, as required by this act.
5185d. Grab irons or hand holds.-4. That from and after the first day of January, 1904, it shall be unlawful for any person, firm, company or corporation operating any railroad, to use any car in any commerce wholly within this state, that is not provided with secure grab irons or hand holds on each side of the coupler at both ends of the car, and on each side of the car at each end of such car.
5185e. Penalties, duty of prosecutor.–5. That any such person, firm, company or corporation using any locomotive engine, running any train, or hauling or permitting to be hauled or used on its line, any car, in violation of any of the provisions of this act, shall be liable to a penalty of $10.00 for each and every such violation, to be recovered in a suit to be brought by the prosecuting attorney in any court in this state having jurisdiction in the locality where such violation shall have been committed; and it shall be the duty of such prosecuting attorney to bring such suits upon duly verified information of such violation having occurred: Provided, That nothing in this act contained shall apply to trains composed of four wheel cars.
5185f. Employes, assuming risks.-6. That any employe of any such person, firm, company or corporation so engaged in operating a railroad within this state, who may be injured by any locomotive, car or train in use contrary to the provisions of this act, shall not be deemed to have assumed the risk occasioned thereby, although continuing in the employment of such person, firm, company or corporation after the unlawful use of such locomotive, car or train has been brought to his knowledge.
[Acts 1903, p. 113. In force April 23, 1903.] 5185g. Employes, hours of service.-1. That it shall be unlawful for any superintendent, train dispatcher, yardmaster, foreman or other railway official to permit, exact, demand or require any engineer, fireman, conductor, brakeman, switchman or other employe, engaged in the movement of passenger or freight trains, or in switching service in yards or railway stations, to remain on duty more than sixteen (16) consecutive hours, unless in case of accident, wreck or other unavoidable cause, without at least eight hours' rest and relief from all duty whatever.
5185h. Injuries, liability.—2. That for any violation of or failure to comply with any of the provisions of this act, such company shall be liable io all persons and employes injured by reason thereof; and no employe shall in any case be held to have assumed the risk incurred by reason of such violation or failure.
5185i. Violation, penalty.—3. Any superintendent, train dispatcher, trainmaster, foreman or other official of any railway in the state of Indiana, violating any of the provisions of this act, shall upon conviction thereof be fined not less than twenty ($20) dollars and not more than two hundred ($200) dollars for each offense.
[Acts 1903, p. 37. In force February 21, 1903.] 5187. Train arrival, penalty, duty of prosecutor.—2. That for each violation of the provisions of this act, in failing to report or in making a false report, such corporation, company or person so neglecting or refusing to comply with the provisions of this act shall forfeit and pay the sum of twenty-five dollars, to be recovered in a civil action to be prosecuted by the prosecuting attorney of the county in which the neglect or refusal occurs, in the name of the state of Indiana, one-half of which shall go to said prosecuting attorney and the remainder shall be paid over to the county in which such proceedings are had and shall be a part of the common school fund: Provided, however, That the total amount that may be recovered or collected under this act for all violations thereof at any one station, by any one corporation, company or person up to the time of the filing of the complaint therefor shall not exceed the sum of three hundred dollars: Provided, That nothing in this act shall affect pending litigation.
This act amends section 5187, Burns' R. S. 1901.
[-Icts 1903, p. 225. In force March 9, 1903.) 5190a. Excess baggage, charges.-1. That it shall be unlawful for any railroad in this state over five miles in length, using steam or electricity as a motive power, to charge, between any points in this state, more than twelve per cent. of the amount of a first-class fare between such points per one hundred pounds for excess of baggage over one hundred