12 N.E. 296 (Ind. 1887), 12,380, Wabash, St. Louis And Pacific Railway Company v. Farver

Docket Nº:12,380
Citation:12 N.E. 296, 111 Ind. 195
Opinion Judge:Mitchell, J.
Party Name:The Wabash, St. Louis and Pacific Railway Company v. Farver
Attorney:C. B. Stuart and W. V. Stuart, for appellant. C. E. Emanuel, for appellee.
Case Date:May 26, 1887
Court:Supreme Court of Indiana
 
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Page 296

12 N.E. 296 (Ind. 1887)

111 Ind. 195

The Wabash, St. Louis and Pacific Railway Company

v.

Farver

No. 12,380

Supreme Court of Indiana

May 26, 1887

From the DeKalb Circuit Court.

Judgment reversed, with costs.

C. B. Stuart and W. V. Stuart, for appellant.

C. E. Emanuel, for appellee.

OPINION

Mitchell, J.

This action was brought by Farver against the railway company to recover damages for personal injuries alleged to have been sustained by him while lawfully pursuing [111 Ind. 196] his way along a public highway in a carriage which was overturned in consequence of his horse having taken fright at a portable steam-engine, alleged to have been negligently placed in or near the highway by the company. The confused state of the record makes it difficult to determine whether the case was tried upon one or both the complaints which are copied into the transcript. Although the one filed last is styled an amended complaint, the subsequent proceedings indicate that both were treated as in the record. The case seems to have been tried upon that theory.

Counsel are at variance, however, as to this matter, but the view we take of the case makes it quite immaterial whether it be one way or the other.

The evidence tends to show, without conflict or substantial dispute, that in September, 1882, the railway company was engaged in constructing a well or reservoir, from which to supply a water station on the line of its road, near Auburn, Indiana. Running water interfered with the work, and it became necessary to cause the accumulating water to be pumped out of the way, so as to prevent it from running into the well or reservoir which was in process of construction. The construction of the well and laying pipes thence to the water station had been committed to the charge of a Mr. Kress, an employee of the railway, who, with a force of men under his control, was engaged in providing means to supply the station with water. Williams, who resided in or near Auburn, was the owner of a small portable steam-engine, which he was accustomed to employ in sawing wood, threshing grain, pumping water, and the like, as opportunity offered. He contracted with Kress, for a stipulated per diem, to furnish and operate his engine in pumping, at such times as might be necessary, in order to keep the water from interfering with the work which the latter...

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