Chicago & Erie Railway Company v. Cummings
| Citation | 53 N.E. 1026,24 Ind.App. 192 |
| Decision Date | 24 May 1899 |
| Docket Number | 2,499 |
| Parties | THE CHICAGO AND ERIE RAILWAY COMPANY v. CUMMINGS, ADMINISTRATOR, ETC |
| Court | Indiana Appellate Court |
Rehearing denied Feb. 20, 1900.
From the Huntington Circuit Court.
Reversed.
W. O Johnson, J. B. Kenner and U. S. Lesh, for appellant.
M. L Spencer, W. A. Branyan and L. M. Ninde, for appellee.
Appellee was plaintiff below, and brought this action to recover damages for the death of the decedent resulting from the alleged negligence of the appellant. The complaint, upon which the case went to trial, was originally in two paragraphs, but, pending the trial, appellee dismissed as to the first paragraph, and the trial proceeded to final judgment upon the issues joined as to the second paragraph of complaint.
The substantial and material averments of the second paragraph of the complaint are as follows: That appellant is a corporation, owning and operating a railroad which runs through the village of West Point, in Huntington county, Indiana; that said railroad crosses a public highway where it passes through said village, which highway is located on the west line of section twenty-two, township twenty-nine north of range eight, at a point 400 feet north of the southwest corner of said section, extending nearly in an east and west course; that on the north side of said railroad, and adjoining said highway on the east, a lumber yard and sawmill are situated, and the view over the same from the west is open and unobstructed; that on April 9, 1896, decedent was engaged at said mill-yard, about ninety feet north of the railroad track, in loading lumber on a wagon, to which a team of horses was hitched; that said team was ordinarily quiet, well broken, easily controlled, not subject to fright at passing trains, and had frequently stood at the same place while trains were passing on said railroad track without scaring; that on said day, while decedent was so employed, a train of freight cars, under the management and control of appellant's servants and employes, passed through said village from the west to the east; that when the locomotive drawing said train was about seventy-five feet west of said highway, and about 150 feet west of decedent, running at the rate of ten miles per hour, and while in full and open view from the cab on said locomotive, the engineer carelessly and negligently opened the valve, and caused a long, loud, and piercing whistle to be emitted and continued from the point above mentioned until the locomotive had passed the point opposite to where the decedent was engaged in loading lumber; that when said whistle began to sound, decedent took hold of the bridle of one horse and directed his son to take hold of the other, and that as the locomotive approached, with the whistle still sounding, the horses became frightened and struggled to run away; that decedent and his son, who was twelve years old, made every effort in their power to control them, which they would have accomplished but for the continued sounding of the whistle, which was so continued before reaching and while passing the decedent, and while in full view of the decedent and his team, and while decedent and his son were using vigorous efforts to control and hold said horses, and while the horses were struggling to get away; that when the engine was about thirty feet west of where decedent was standing the said team broke away from decedent and his son, and ran away, throwing them down, injuring, striking, and wounding decedent, from the effects of which he soon died. It is further averred that at the point where decedent was standing, appellant well knew that teams of horses were frequently standing, while persons were engaged in necessary business, and that there was no requirement under the rules of the company for sounding the whistle at or near said place, and that the sounding of the whistle there was unnecessary, and unexpected by decedent. It is also alleged that the injury to and the death of decedent was wholly without fault or negligence on his part; that he left surviving him as his heir at law his wife, and that this action was brought for her use and benefit.
To this paragraph of complaint appellant addressed a demurrer for want of sufficient facts, which was overruled, and an exception reserved. The issue was joined by answer in general denial, trial by jury, a general verdict for appellee for $ 2,500, and with the general verdict the jury answered and returned certain interrogatories addressed to them. The appellee moved the court for judgment on the general verdict, and the appellant moved for judgment in its favor on the answers to interrogatories, notwithstanding the general verdict. The court sustained the appellee's, and overruled the appellant's motion for judgment. Appellant moved for a new trial, which was overruled, and time given for filing a bill of exceptions.
Appellant has assigned error as follows: (1) That the second paragraph of complaint does not state facts sufficient to constitute a cause of action; (2) that the court erred in overruling the demurrer to the second paragraph of complaint; (3) the court erred in overruling appellant's motion for judgment in its favor on the answers to interrogatories; (4) the court erred in sustaining appellee's motion for judgment, and (5) the court erred in overruling appellant's motion for a new trial. The second and third specifications of the assignment of errors may be considered together.
It is first urged that the second paragraph of complaint is bad because it does not specify or state the character in which appellee sued. This objection has no merit. The complaint on its face shows that the appellee was the administrator of the estate of Frederick Rohlfing. True it does not aver, in express terms, that he was duly appointed and qualified, but it does show the capacity in which he sues. It also shows that the action was brought for the benefit of the widow of the decedent, who was his sole surviving heir. These are sufficient allegations to show the capacity in which appellee sued. It must be remembered that the demurrer to the complaint was for want of facts, and not that the appellee did not have legal capacity to sue. By demurring for want of facts, appellant waived any possible objection that the appellee did not have legal capacity to sue. Ohio, etc., R. Co. v. McClure, 47 Ind. 317. The objection thus urged is not tenable.
We pass now to a consideration of the complaint as to the sufficiency of the facts pleaded. It is a plain proposition that the complaint proceeds upon the theory that the decedent's injury and death resulted from the alleged careless, negligent, and unnecessary sounding of the whistle on appellant's locomotive, which frightened the horses, so that they ran away, etc.
It appears from the complaint that the decedent was ninety feet north of the railroad track and 150 feet east of the highway; that for some distance before coming opposite to where decedent was, he was in full view, and that no obstructions intervened between him and the approaching train; that when he saw the train approaching, he took hold of the bridle of one of the horses, and directed his foster-son to take hold of the other, and they were in that position as the train approached.
A railroad company having a legal right to operate its road by running trains propelled by steam may make all noises usually incident thereto, whether occasioned by the escape of steam, rattling of cars, or other necessary causes. Whitney v. Maine, etc., R. Co., 69 Me. 208. And they may thus operate their trains, although the noises usually incident thereto may cause much annoyance and danger to those who are near them, or driving horses in their immediate vicinity. See Bailey v. Hartford, etc., R. Co., 56 Conn. 444, 16 A. 234, 37 Am. & Eng. R. Cas., 483; Norton v. Eastern R. Co., 113 Mass. 366. Rorer on Railroads, p. 704, says: "The frightening of horses or teams, and injury resulting therefrom, by the cars or other property of a railroad, and the legitimate use thereof, at the depot or other place of the company, is not a ground of action against the company, if the company do no more than use the same in a proper manner, and are guilty of no wrong act or negligence causing the same."
In Billman v. Indianapolis, etc., R. Co., 76 Ind. 166, 40 Am. Rep. 230, it was said: "The mere sounding of the whistle cannot be deemed negligence, although blown in close proximity to the highway, and even though there are horses in the immediate vicinity."
In Cincinnati, etc., R. Co. v. Gaines, 104 Ind. 526, 54 Am. Rep. 334, 4 N.E. 34, it was held that the sounding of a locomotive whistle, even at a place of extraordinary danger, where teams are likely to be frightened thereby, is not negligence per se, and to justify an inference of negligence from such act, the party having the burden at issue must show that it was done under such circumstances as made it at the time negligent.
In Kansas, in a case involving the principles we are now discussing, it was said: "It cannot be questioned that defendant's train was rightfully on its track, and that the blowing of a whistle, and the letting off of steam with its attendant noise, are not per se acts of negligence, or evidence of wrongful conduct." Culp v. Atchison, etc., R. Co., 17 Kan. 475.
If the servants of appellant were guilty of no unlawful conduct, while exercising a lawful right, the fact that the decedent's team took fright at the sound of the whistle can not make appellant liable. Cincinnati, etc., R. Co. v. Gaines, supra.
In the case of Philadelphia, etc., R. Co v. Stinger, 78 Pa. 219, it was held that the mere fact of whistling furnishes no presumption of...
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