Brinkman v. Pacholke

• Citation: 84 N.E. 762,41 Ind.App. 662
• Decision Date: 15 May 1908
• Docket Number: No. 6,133.,6,133.
• Parties: BRINKMAN et al. v. PACHOLKE.
• Court: Indiana Appellate Court

41 Ind.App. 662

84 N.E. 762

BRINKMAN et al.

v.PACHOLKE.

No. 6,133.

Appellate Court of Indiana.

May 15, 1908.

Appeal from Circuit Court, St. Joseph County; W. A. Funk, Judge.

Action by Gustave Pacholke against William Brinkman and others. From a judgment for plaintiff, defendants appeal. Affirmed.James F. Gallaher, for appellants. Sutherland & Smith, F. J. L. Meyer, and Charles P. Drummond, for appellee.

MYERS, J.

This action, commenced in the La Porte circuit court, whence the venue was changed to the court below, was brought by the appellee against appellants to recover damages for personal injury alleged to have been caused by the negligence of appellants. A complaint in one paragraph, answered by a general denial, formed the issue submitted to a jury, resulting in a verdict and judgment in favor of appellee.

The only error assigned is based upon the ruling of the court in overruling appellants' motion for a new trial. The complaint showed in substance that on June 1, 1905, appellants were running and operating along a public highway in La Porte county a certain automobile, describing its size, and propelled by an exploding gasoline engine, which made a great noise and gave off smoke; that said automobile was provided with a horn operated by a rubber bulb, which, when blown, gave a loud, coarse, and alarming noise; that the automobile, when being so operated and while being so run, gave forth a loud, whirring, and puffing noise that could be heard for several hundred yards; that the appellee, with his daughter 10 years old, was traveling in a buggy drawn by one horse and going along said highway from Michigan City to his home in La Porte county; that the horse was gentle and well broken, and was accustomed to seeing and meeting automobiles when driven along the highway; that while appellee was then so driving along the highway with all due care and caution the appellants in charge of said automobile came up from behind appellee at a place where the highway was about 12 feet in width, with ditches on each side with precipitous banks for a distance of about 12 rods to a cross-highway; that the highway for said distance was so narrowly constructed that when appellants attempted to pass along the side of his horse and buggy they came near running into them; that appellants at that time were driving said automobile at great speed, to wit, 20 miles an hour, thereby causing it to give forth a loud, whirring, and puffing noise, and while so approaching, and when within a distance of 5 rods from appellee, appellants caused said horn to be continuously blown, giving forth a loud, coarse, and alarming noise, and caused said machine to give forth a noise, as heretofore described, which noises from the engine and horn greatly frightened appellee's horse, which immediately became unmanageable and commenced to run away, whereupon the appellee immediately called out to appellants to stop; that appellants could see plainly, and did see from the conduct of the horse, that he was greatly frightened and was becoming unmanageable, and could have stopped their automobile at that time before it reached and came up alongside of the appellee, and could have given the appellee time to reach said cross-highway and to escape and to avoid injury, which he was endeavoring to do. But the appellants, wholly disregarding appellee's entreaties to stop, which defendants heard, and the frightened condition of his horse, negligently, wantonly, and insolently continued to approach with their said automobile upon appellee and his horse at a reckless speed and in the reckless and negligent manner aforesaid, and negligently and recklessly continued to sound the horn and to cause said machine to give off a loud, whirring, buzzing, and puffing noise and explosions while so approaching until they came up alongside of appellee, when his horse became so frenzied with fright, caused by the close contact, the rapid speed, the loud tooting of the horn, the appearance of the machine, and the alarming noises given forth by it, that he became unmanageable and beyond the control of appellee and ran away and plunged into said ditch at the side of the highway, throwing appellee violently to the ground, etc., describing his injuries, which occasioned the amputation of one of his legs, and alleging damages.

Appellants first insist that the evidence failed to sustain the verdict. It can no longer be questioned that the use of automobiles or motor cars, such as that here in question, upon streets and other public highways, is lawful. Such vehicles furnish a convenient and useful mode of travel and transportation not incompatible with the proper use of the highway by others; but in consequence of the great speed with which they may be run, their size and general appearance, and the noises made in their use, and infrequency of their use in particular localities, and the circumstances of the particular occasions of their use, commensurate care, skill, and diligence must be required of the person employing such means of transportation. The general rule applies that he must so use his own as not to injure another. The automobile may be used with safety to other users of the highway, and in its proper use upon the highways there is equal right with the users of other vehicles properly upon the highway. The law recognizes such right of use upon general principles, and at the time of the appellee's injury the right was expressly recognized by statute. Indiana Springs Co. v. Brown, 165 Ind. 465, 74 N. E. 615, 1 L. R. A. (N. S.) 238;McIntyre v. Orner, 166 Ind. 57, 76 N. E. 750, 4 L. R. A. (N. S.) 1130, 117 Am. St. Rep. 359; Acts 1905, p. 202, c. 123. That statute forbade the operation of such a vehicle on any public highway or in any public place “at any rate of speed greater than is reasonable and proper, having regard to the use in common of such highway or place, or so as to endanger the life or limb of any person, and in no event shall such motor vehicle be operatedat a greater rate of speed than,” etc. The statute in all its provisions, while recognizing the rightfulness of such vehicles in common with other vehicles on public highways, recognizes also the liability of horses to become frightened at their approach, and the need and the duty of using the same with skill and care in view of such conditions likely to arise. In the case before us there was some evidence tending to show that both vehicles were going southward, and when the automobile had arrived at a point about 200 or 300 feet behind the appellee's buggy its operator commenced to sound the horn attached thereto. Thereupon the appellee's horse gave unmistakable evidence of fright, his movement being seen plainly by the occupants of the automobile. Notwithstanding such indication of danger, the operator of the car caused it to advance, and did attempt, while...