Crum v. Conover

On Petition for Rehearing.

Davis, J.

We assume that the appellee was not guilty of contributory negligence. Childers v. Louisville, etc., R. W. Co., 12 Ind. App. 686 (41 N. E. Rep. 21, 22.) We also assume that, as between the appellant and the railroad company, it was the duty of the appellant to erect and maintain the gates at private crossings. Sections 5320, 5321, 5322, R. S. 1894.

Is the appellant guilty of actionable negligence because of his failure to erect and maintain substantial gates in the line of the railroad fence across said driveway? Negligence only arises from a breach of duty.…