Budkiewicz v. Elgin, Joliet & Eastern Railway Co.

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…