City of New Albany v. Stirr

• Decision Date: 18 November 1904
• Docket Number: No. 4,985.,4,985.
• Citation: 34 Ind.App. 615,72 N.E. 275
• Parties: CITY OF NEW ALBANY v. STIRR.
• Court: Indiana Appellate Court

34 Ind.App. 615

72 N.E. 275

CITY OF NEW ALBANY

v.STIRR.

No. 4,985.^*

Appellate Court of Indiana, Division No. 2.

Nov. 18, 1904.

Appeal from Circuit Court, Floyd County; Jas. K. Marsh, Special Judge.

Action by Joseph Stirr against the city of New Albany. From a judgment for plaintiff, defendant appeals. Reversed.

Joseph S. Foley and B. F. Watson, for appellant. Herter & Hester, for appellee.

WILEY, J.

Appellee recovered a judgment against appellant for personal injuries alleged to have resulted from its negligence. The amended complaint is in two paragraphs, to each of which a demurrer was overruled. Answer in denial. Appellant's motion for a new trial was overruled. Appellant asks a reversal upon two grounds: First, that the trial court erred in overruling its demurrer to each paragraph of amended complaint; and, second, that it was error to overrule its motion for a new trial.

The only question discussed under the motion for a new trial is based upon the action of the court in giving instructions 3 and 4. As these instructions relate to the same questions presented by the demurrer to the amended complaint, they may properly be considered in connection therewith. If the complaint states a cause of action, under the theory upon which it proceeds, then the instructions correctly stated the law applicable to the facts. There is no material difference in the two paragraphs of complaint, and a statement of the facts relied upon in one will suffice for both. By the first paragraph the facts exhibited are as follows: Appellant is an incorporated city. That it maintained a fire department. That appellee was an employé of the city in its fire department. That, as such employé, one of his duties was to exercise the horses used for drawing fire engines. That he was engaged in that duty, when the horses he was exercising became frightened at an engine owned by the city, by its being propelled through one of the public streets, and that appellant neglected to send some one in front of the engine, at least 50 yards, to warn persons of its approach. The theory of the complaint will appear from the following averment: “Plaintiff further avers that the defendant was at said time, and for several years previous thereto had been, the owner of a traction or road engine which was propelled by steam power, and which was used by the defendant for the purpose of rolling and repairing its macadamized and other streets; that on said day the said traction engine of the defendant, being in charge of one of its servants and agents, who was acting for the city in that behalf, was being propelled and driven northwardly along said Thirteenth street of said city, and towards said engine house, for the purpose of reaching a point on Vincennes street more than five (5) blocks away, where it was to be used in street repairs, but not for the purpose of repairing said Thirteenth street; that when the plaintiff had come out of said engine house and had reached said Market street with said horses as aforesaid, the said traction engine had reached a point on said Thirteenth street about one hundred and twenty (120) feet south of said Market street, and about one hundred and sixty (160) feet distant from where the plaintiff was with said horses; that said traction engine was then and there blowing off steam, and making loud and unusual noises, and allowing smoke to escape from the smokestack thereof, making unusual sights, all of which was naturally calculated to frighten horses and teams; that the defendant and its officers and agents wholly failed, while propelling and using said engine on said highway and street as aforesaid, to send some person in advance of said engine, not less than fifty (50) yards, to warn all persons approaching, in charge of a horse or team, of his or their proximity to such engine; that, if the said defendant had sent some person in advance of said engine for said purpose, he would have been within thirty (30) feet of the plaintiff, and could have so notified him of its approach, and that the plaintiff, being so notified, could have prevented said horses from running away. Plaintiff further says that he did not know of the approach of said traction engine, nor that the same was in said neighborhood; that, as a direct result of the failure of the defendant to so send some person in advance to give said warning, and in so failing to warn the plaintiff of the approach of said engine, and because of the presence of said engine at said place, making said noises and presenting said unusual appearance, said horses in charge of the plaintiff were caused to take fright and run away.”

It is clear that appellee bases his right to recover upon the failure of appellant to perform a duty placed upon it by statute. That statute is as follows: “Any person or owner of a traction or road engine shall, while using the said engine on any public highway, street or alley of any incorporated town or city, send some person in advance of said engine, not less than fifty yards, to warn all persons approaching, who are in charge of a horse, team or teams, of their proximity to such engine.” Section 2044, Burns' Ann. St. 1901. “And it shall be the duty of the engineer in charge of said engine, or the owner thereof, upon the approach of said horse, team or teams, to drive said engine to one side of the road or street when practicable, and to stop said engine until said horse, team or teams, have passed said engine, and the whistle of said engine shall not be sounded while said horse, team or teams are passing.” Section 2045, Burns' Ann. St. 1901. Section 2046 fixes a penalty for a violation of any of the provisions of the statute. This statute was enacted in 1889 (Laws 1889, p. 428, c. 229), and its title is as follows: “An act to make it unlawful for any person, or any owner of any traction or road engine, to run the same or use the said engine upon the public highway, street or alley of any incorporated town or city in violation of this act, and fixing penalties for the violation of this act.” The...