Cleveland, C., C. & St. L. Ry. Co. v. Tauer

• Decision Date: 12 December 1911
• Docket Number: No. 21,953.,21,953.
• Citation: 176 Ind. 621,96 N.E. 758
• Court: Indiana Supreme Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. TAUER.

176 Ind. 621

96 N.E. 758

CLEVELAND, C., C. & ST. L. RY. CO.

v.TAUER.

No. 21,953.

Supreme Court of Indiana.

Dec. 12, 1911.

Appeal from Circuit Court, Boone County; W. H. Parr, Judge.

Action by Paul O. Tauer against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, with instructions.Samuel M. Ralston, Leonard J. Hackney, Frank L. Littleton, and Bert Winters, for appellant. Shelby & Worley and Wymond J. Beckett, for appellee.

COX, J.

This appeal is an action for damages to personal property occasioned by fire, which originated on the appellee's premises, within the corporate limits of the city of Lebanon. The damages were alleged to have been aggravated by the negligence of appellant in delaying the city firemen, in charge of the fire apparatus on the way to the scene of the fire, by obstructing, with one of its freight trains, a street along which they had to pass with it. From a verdict and judgment in favor of appellee for $2,500, this appeal is taken.

Appellant first relies on the action of the trial court in overruling its demurrer to the complaint.

[1] The first objection to the complaint is that its allegations do not serve to show that the obstruction of the street leading to the scene of the fire was the proximate cause of any of appellee's damages; that it appears from the facts alleged that the connection between the obstruction of the crossing by appellant's train and the fire is too remote to give rise to a cause of action for any part of the damage wrought by the fire. After alleging the status of the appellant as the owner and operator of the railroad, and its location in the city of Lebanon, the fact of appellee's ownership of the greenhouse and stock of flowers and plants, and its location in the city with reference to the railroad of appellant, and the building in which the city firemen and apparatus were stationed, between which firehouse and appellee's greenhouse the tracks of appellant intervened, the proper equipment of the city's fire department with apparatus and men, and the existence of an adequate water system with hydrants located conveniently to the greenhouse, and the necessity for the firemen to proceed to the fire on the street in question on the day of the occurrences complained of, the complaint further alleged that at about the hour of 7 o'clock in the evening of the day in question a fire broke out in the boiler room connected with the greenhouse, and an alarm of fire was immediatelysent to the fire department. It averred that the fire department at once responded, and proceeded to the fire by the nearest and most practicable route, which lay along the street obstructed; that when the firemen and apparatus reached the appellant's track they found the street closed by appellant's freight train, standing across it; the train being composed of an engine and 25 cars; the engine being about 40 feet west of the street crossing, and the train extending about a quarter of a mile east thereof. It alleged that the firemen notified appellant's employés in charge of the train of the fire, and that they demanded that the obstruction be removed, so that they could proceed; that they saw, or in the exercise of ordinary care could have seen, that the train prevented the firemen from continuing their run to the fire; and that they knew, or could have known, that the quickest way to clear the crossing was to back the train east of the crossing, which, it was alleged, could have been done in less than two minutes, or they could have uncoupled the train and cleared the crossing in about the same time; but that, with full knowledge of all of the conditions, they carelessly and negligently refused to so open the crossing, but that they unlawfully and carelessly and negligently obstructed the street with the train for more than 10 minutes, and then proceeded with the long train westwardly across the street. It is alleged that, had the firemen not been stopped by the obstructed crossing, they could and would have saved the greenhouse from destruction; that before they finally reached the greenhouse the fire had spread from the boiler room to the greenhouse, which contained the plaintiff's flowers and plants, and killed them, to the damage of the plaintiff in the sum of $3,000. The complaint concluded with the allegation “that all of said damages and destruction of said greenhouse and contents was the direct and proximate result of the carelessness and negligence of said defendant, as herein averred,” and a demand for judgment.

The complaint shows a violation of section 2671, Burns' 1908, which makes it a misdemeanor for a conductor or other person in charge of a railroad freight train to permit or suffer the same to remain standing across any public highway, street, alley, or farm crossing, or who, whenever it becomes necessary to stop such train across any public highway, street, alley, or farm crossing, neglects to leave a space 60 feet across such highway, street, alley, or farm crossing. See Cleveland, etc., Co. v. Wynant (1884) 100 Ind. 160;Pittsburg, etc., Co. v. Kitley (1888) 118 Ind. 152, 20 N. E. 727;State v. Malone (1893) 8 Ind. App. 8, 35 N. E. 198;Becker v. State (1904) 33 Ind. App. 261, 71 N. E. 188.

The violation of a statutory duty is negligence per se, and when injury and damage flow directly therefrom as a natural and probable result of the wrongful act, unaffected by the contributory negligence of the injured party, a liability is incurred by the wrongdoer. 29 Cyc. 436; 1 Thompson, Com. Neg. § 10; 3 Elliott on Railroads, §§ 1155, 1206; Pennsylvania Co. v. Hensel (1880) 70 Ind. 569, 36 Am. Rep. 188;Indiana, etc., R. Co. v. Barnbast (1888) 115 Ind. 399, 16 N. E. 121; Pittsburg, etc., R. Co. v. Kitley, supra; Baltimore, etc., R. Co. v. Young (1896) 146 Ind. 374, 45 N. E. 479;Nickey v. Steuder (1904) 164 Ind. 191, 73 N. E. 117;Pittsburgh, etc., R. Co. v. Terrell, 95 N. E. 1109.

[2][3] Of course, the violation of the statutory duty must produce or help to produce the injury; the injury or damage must flow from the wrong. While consequential damages which may be recovered are such as might reasonably be anticipated by the perpetrator of the wrongful act, and must be the natural and probable effect of the wrongful act, yet it is not essential to a recovery against the wrongdoer that he should have foreseen the identical injury to the particular person. If the act has a tendency to injure some one, and finally does so, the wrongful act is a proximate cause. 1 Sutherland on Damages (3d Ed.) § 25; 1 Thomp. Com. Neg. § 59; Davis v. Mercer Lumber Co. (1904) 164 Ind. 413, 73 N. E. 899;Hohenstine, etc., Co. v. Matthews (Ind. App. 1910) 92 N. E. 196;King v. Inland Steel Co., 96 N. E. 337.

The purpose of the statute was to keep open the ordinary ways of communication of the people in going about their affairs, where such ways are crossed by railroads. Great quickness in responding to fire alarms, it is well known, is constantly sought in fire-fighting organizations. Speed in getting to the scene of the fire, as well as in throwing the quenching element on the flames, is a test of efficiency. So we know that the loss of a few minutes time often means much in checking or controlling fires and saving property. In this case we know from the allegations of the complaint that the firemen got to the burning property of appellee, and that some loss occurred which would not have, if the firemen had not been delayed by what appears from the allegations of the complaint to have been the unlawful act of appellant's employés. Whatever that loss was which the earlier arrival of the firemen, undeterred by the unlawful or negligent obstruction of the street crossing, would have prevented the appellant is liable for, in the absence of contributory negligence on the part of appellee, for such loss would be directly attributable to appellant's wrongful act.

Appellant's employés were bound to know that the obstruction of the street crossing by their train might work inconvenience, delay, or positive harm and damage to some one in some matter connected with the proper use of the highway so obstructed; and the complaint adds to this that they actually knew that a fire was raging beyond the tracks of the railroad, and that the firemen were on their way to the fire on the obstructed street, and were demanding that the obstruction be removed, so that they might proceed. That some damage-that which the firemen and the means at their command for stopping and controlling the fire would have been able to prevent, if undelayed by the obstructing train-would occur the employés of appellant must have known. That damage would be the proximate result of the obstruction, and appellee was entitled to have determined, as a question of fact, to what extent the obstruction of the crossing proximately caused him injury. The facts alleged do not show, as a necessary inference, and therefore as a matter of law, that the obstruction was not the proximate cause of damage to appellee.

In the case of Metallic, etc., Co. v. Fitchburg Railroad Company (1872) 109 Mass. 277, 12 Am. Rep. 689, it appeared that to obtain the only available supply of water to throw upon a burning building a line of hose was laid across a railroad track, and a train was run over it, and severed it, while the water was being applied to the fire. In any action by the owner of the building...