17 N.E. 202 (Ind. 1888), 13,215, Brannen v. Kokomo, Greentown And Jerome Gravel Road Company

Docket Nº:13,215
Citation:17 N.E. 202, 115 Ind. 115
Opinion Judge:Zollars, J.
Party Name:Brannen v. The Kokomo, Greentown and Jerome Gravel Road Company
Attorney:J. C. Blacklidge, W. E. Blacklidge and B. C. H. Moon, for appellant. M. Bell and W. C. Purdum, for appellee.
Case Date:May 29, 1888
Court:Supreme Court of Indiana
 
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Page 202

17 N.E. 202 (Ind. 1888)

115 Ind. 115

Brannen

v.

The Kokomo, Greentown and Jerome Gravel Road Company

No. 13,215

Supreme Court of Indiana

May 29, 1888

From the Howard Circuit Court.

Judgment affirmed, at appellant's costs.

J. C. Blacklidge, W. E. Blacklidge and B. C. H. Moon, for appellant.

M. Bell and W. C. Purdum, for appellee.

OPINION

Zollars, J.

In their special verdict, the jury found that, in 1884, the appellee was a gravel road corporation owning and operating the Kokomo, Greentown and Jerome gravel road as a toll-road; that, on the 30th day of October, 1884, Mary Carter was the employee and agent of the company, authorized to collect toll from travellers over the road; that she occupied a toll-house about one mile east of the city of Kokomo; that Jacob Templin, her son, lived with her and assisted in the collection of tolls; that about 8:30 p. m. of said day appellant was riding in a spring wagon drawn by [115 Ind. 116] two horses and driven by David Brannen, he being the owner of the horses and wagon; that there were

Page 203

in the wagon, besides appellant and said Brannen, four other persons, all of whom were on their way from Kokomo to near Greentown, some ten miles from that city; that the horses were but three years old, and one of them not gentle; that Brannen, the owner and driver, was considerably intoxicated, and when near the toll-gate, and intending to pass it without the payment of toll, stopped the horses, and, without speaking to them, struck them with a whip, which caused them to start and go in a lope and rapid gait, passing the toll-gate; that said Jacob Templin, who was collecting toll at the time, believing that the horses were thus driven with the intention of the persons in the wagon to run by the gate without the payment of toll, for the purpose of stopping them and compelling the payment of the proper toll, suddenly drew down the pole, erected for the purpose of preventing persons passing without the payment of toll, and in so doing, and by reason of the rapid driving, the same struck the front end of the wagon and threw from it the six persons and the three seats upon which they were riding, and appellant was injured and suffered damages in the sum of fifty dollars; that, had not the driver struck the horses and caused them to move so rapidly, the pole would not have been let down, and appellant would not have received the injury; that, the horses being young, it was an act of imprudence to strike them with a whip before passing the toll-gate, which act of imprudence or wilful misconduct contributed to appellant's injury; that neither of the persons in the wagon tendered or offered to pay any toll until after appellant had received the injury.

Upon the special verdict, the substance of which we have given above, appellant moved for judgment in his favor in the sum of fifty dollars. That motion was overruled and judgment was rendered for appellee for its costs. For a reversal of that judgment appellant prosecutes this appeal.

[115 Ind. 117] That Brannen, the owner and driver of the team, was guilty, not only of negligence, but also of a positive wrong, in attempting to pass the gate as he did without the payment of toll, is clear beyond question.

Whether or not, in a case like this, where the injured party was voluntarily riding in a private conveyance, the negligence of the owner and driver, over whom he had no control, and who was a fit person to manage the horses, should be so imputed to him as to defeat a recovery on his part, assuming that he was without personal fault, and that the only wrong on the part of the defendant was negligence, is a question upon which...

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