Brannen v. Kokomo

Decision Date29 May 1888
Citation17 N.E. 202,115 Ind. 115
CourtIndiana Supreme Court
PartiesBrannen v. Kokomo, G. & J. G. R. Co.

OPINION TEXT STARTS HERE

Appeal from circuit court, Howard county; Daniel Waugh, Judge.

Action by Samuel F. Brannen against the Kokomo, Greentown & Jerome Gravel-Road Company to recover damages for personal injuries. There was judgment for defendant, and plaintiff appeals.

Blackledge, Blackledge & Moore, for appellant. Bell & Purdum, for appellee.

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 & Jerome Gravel Road as a toll-road; that on the 30th day of October, 1884, Mary Carter was the employe and agent of the company, authorized to collect toll from travelers 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 two horses, and driven by David Brannen,-he being the owner of the horses and wagon; that there was in the wagon, besides appellant and said Brannen, four other persons, all of whom were on their way from Kokomo to near Greentown, some 10 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 damage in the sum of $50; 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 willful 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 $50. That motion was overruled, and judgment was rendered for appellee for its costs. For a reversal of that judgment, appellant prosecutes this appeal.

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 the authorities are not in accord. This court, however, has heretofore adopted and followed the line of decisions which hold that in such a case negligence will not be so imputed. Town of Albion v. Hetrick, 90 Ind. 545, (550;)Railroad Co. v. McMurray, 98 Ind. 358, (369.) See, also, Railroad Co. v. Spencer, Id. 186. It is the settled law in this state, also, that, where the ground of the action is negligence, it must be a case of unmixed negligence; that is, the plaintiff, in order to recover in such an action, must be free from negligence which contributed to the injury. It is equally well settled here that in such an action the plaintiff must allege in his complaint that he was free from negligence which contributed to the injury; that it must in some way be made to appear from the evidence that he was free from such negligence; and that if, from the whole evidence, it cannot be determined whether or not he was free from such negligence, the finding and judgment must be against him. Stevens v. Road Co., 99 Ind. 392;Eberhart v. Reister, 96 Ind. 478;Railway Co v. Lockridge, 93 Ind. 191;Lyons v. Railroad Co., 101 Ind. 419;Railroad Co. v. Butler, 103 Ind. 31, 2 N. E. Rep. 138; Railway Co. v. Greene, 106 Ind. 279, 6 N. E. Rep. 603; City of Fort Wayne v. Coombs, 107 Ind. 75, 7 N. E. Rep. 743; Stock-Yards Co. v. Mann, 107 Ind. 89, 7 N. E. Rep. 893; Railway Co. v. Hiltzhauer, 99 Ind. 486. See, also, Pierce, R. R. 298, and cases there cited. In the case before us the facts were found by the jury, and hence as to whether appellant, upon those facts, was or was not negligent, is a question of law for the court. City of Indianapolis v. Cook, 99 Ind. 10;Conner v. Railway Co., 105 Ind. 62, 4 N. E. Rep. 441; Railroad Co. v. Spencer, supra; Town of Albion v. Hetrick, supra;Railway Co. v. Watson, 15 N. E. Rep. 824. As we have stated, when the issue is one of negligence, in order that the plaintiff may recover, it must be made to appear from the evidence that he was not guilty of negligence contributing to the injury. In this case, we are not called upon to pass upon the evidence, but upon the facts which the jury have found from the evidence. While there may be ground for argument as to whether the facts found affirmatively show appellant to have been guilty of wrong and contributory negligence, we think that there is no reasonable escape from the conclusion that the facts so found fail to show that he was not guilty of such wrong and negligence. The correctness of this conclusion will be made more apparent by a reference to some of the facts stated in the special verdict, without undertaking to state just how much weight should be given to each separately. In the first place, the intoxication of the driver, and his course in striking the young horses, and attempting to run them through the gate without the payment of toll, show, at least, that he was reckless and bold, if, indeed, he was not an unfit person to manage the team. In the second place, appellant must have...

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22 cases
  • Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company v. Ferrell
    • United States
    • Indiana Appellate Court
    • 26 Octubre 1906
    ... ... Ader (1887), 110 Ind. 376, 380, 11 N.E. 437; ... Gregory v. Cleveland, etc., R. Co. (1887), ... 112 Ind. 385, 387, 14 N.E. 228; Brannen v ... Kokomo, etc., Gravel Road Co. (1888), 115 Ind. 115, ... 7 Am. St. 411, 17 N.E. 202; Citizens' St. R. Co ... v. Willoeby (1893), 134 ... ...
  • Pittsburgh, C., C. & St. L. Ry. Co. v. Ferrell
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    • 26 Octubre 1906
    ...380, 11 N. E. 437;Gregory, Adm'r, v. Cincinnati, etc., R. Co., 112 Ind. 385, 387, 14 N. E. 228;Brannen v. Kokomo, Greentown & Jerome Gravel R. Co., 115 Ind. 115, 17 N. E. 202, 7 Am. St. Rep. 411;Citizens' St. Ry. Co. of Indianapolis v. Willoeby, 134 Ind. 563, 33 N. E. 627;Chicago, etc., R. ......
  • Ames v. Waterloo & C.F. Rapid Transit Co.
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    ... ... See Cooley ... on Torts (2d Ed.) 810; Beach on Contributory Negligence (2d ... Ed.) sections 61-64; Brannen v. R. R. , 115 Ind. 115 ... (17 N.E. 202, 7 Am. St. Rep. 411) Florida Southern Ry. v ... Hirst , 30 Fla. 1 (11 So. 506, 16 L.R.A. 631, 32 Am. St ... ...
  • McKeown v. Calusa
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    • Indiana Appellate Court
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    ...wilfulness,' 'wanton' or even 'reckless.' Parker v. Pennsylvania Co. (1893), 134 Ind. 673, 34 N.E. 504; Brannen v. Kokomo G. & J. G.R. Co. (1888), 115 Ind. 115, 17 N.E. 202; Palmer v. Chicago, St. L. & P.R. Co. (1887), 112 Ind. 250, 14 N.E. 70. See, also, Hoesel v. Cain (1944), 222 Ind. 330......
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