Cleveland, Cincinnati, Chicago And St. Louis Railway Company v. Tauer
| Decision Date | 12 December 1911 |
| Docket Number | 21,953 |
| Citation | 96 N.E. 758,176 Ind. 621 |
| Parties | Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Tauer |
| Court | Indiana Supreme Court |
From Boone Circuit Court; Willett H. Parr, Judge.
Action by Paul O. Tauer against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff defendant appeals. Transferred from Appellate Court under § 1405 Burns 1908 Acts 1901 p. 590.
Reversed.
Samuel M. Ralston, L. J. Hackney, Frank L. Littleton and Bert Winters, for appellant.
Shelby & Worley and Wymond J. Beckett, for appellee.
This appeal is in an action for damages to personal property occasioned by fire that originated on appellee's premises within the corporate limits of the city of Lebanon. The damages are 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.
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.
The first objection to the complaint is that its allegations do not serve to show that obstructing the street leading to the scene of the fire was the proximate cause of appellee's damages; that it appears from the facts alleged that the connection between obstructing the street crossing 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 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 appellant's railroad and the building in which the city firemen and apparatus were stationed, between which fire-house 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 7 o'clock p. m. a fire broke out in the boiler-room connected with the greenhouse, and an alarm of fire was immediately sent to the fire department; that the fire department at once proceeded to the fire by the nearest and most practicable route, which lay along the street obstructed; that when the firemen and apparatus reached appellant's tracks, they found the street closed by a freight-train standing across it, the train being composed of an engine and twenty-five cars, the engine being about forty feet west of the street crossing, and the train extending about a quarter of a mile east thereof; that the firemen notified appellant's employes in charge of the train of the fire, and demanded that the obstruction be removed, so that they could proceed; that said employes 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 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 that they could have uncoupled the train and cleared the crossing in about the same time, but, that with full knowledge of all the conditions, they carelessly and negligently refused so to open the crossing, and unlawfully, carelessly and negligently obstructed the street with the train for more than ten minutes, and then proceeded with the long train westwardly across the street; 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 had 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 the destruction of said greenhouse and contents were 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 § 2671 Burns 1908, Acts 1905 p. 584, § 666, which makes it a misdemeanor for a conductor, or other person in charge of a railroad freight-train, to permit or suffer such train to remain standing across any public highway, street, alley or farm crossing, or, whenever it becomes necessary to stop such train across any public highway, street, alley or farm crossing, to neglect to leave a space sixty feet across such highway, street, alley or farm crossing. Cleveland, etc., R. Co. v. Wynant (1885), 100 Ind. 160; Pittsburgh, etc., R. Co. v. Kitley (1889), 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, Negligence (2d ed.) § 10; 3 Elliott, Railroads §§ 1155, 1206; Pennsylvania Co. v. Hensil (1880), 70 Ind. 569, 36 Am. Rep. 188; Indiana, etc., R. Co. v. Barnhart (1888), 115 Ind. 399, 16 N.E. 121; Pittsburgh, etc., R. Co. v. Kitley, supra; Baltimore, etc., R. Co. v. Young (1896), 146 Ind. 374, 45 N.E. 479; Nickey v. Steuder (1905), 164 Ind. 189, 73 N.E. 117; Pittsburgh, etc., R. Co. v. Terrell (1912), 177 Ind. 447, 95 N.E. 1109.
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, Damages (3d ed.) § 25; 1 Thompson, Negligence (2d ed.) § 59; Davis v. Mercer Lumber Co. (1905), 164 Ind. 413, 73 N.E. 899; Hohenstein-Hartmetz, etc., Co. v. Matthews (1910), 46 Ind.App. 616, 92 N.E. 196; King v. Inland Steel Co. (1912), 177 Ind. .
The purpose of the statute is to keep open the ordinary ways of communication the people have in going about their affairs, where such ways are crossed by railroads. Quickness in responding to fire alarms 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 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, but there was some loss that would not have been caused if the firemen had not been delayed by the unlawful act of appellant's employes. Whatever the loss was, that the earlier arrival of the firemen, undeterred by the unlawful or negligent obstruction of the street crossing, would have prevented, 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 employes were bound to know that the obstruction of the street crossing by said 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 would occur, which the firemen, with the means at their command for stopping and controlling the fire, would have been able to prevent if undelayed by said train, the employes of appellant must have known. 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., Casting Co. v. Fitchburg R. Co. (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 an action by the owner of the building against the railroad company to recover consequential damages, it was contended, as in this case that no direct or immediate injury was occasioned to the plaintiff by the act of the defendant, but that the injury was occasioned by the fire directly and by the defendant, but remotely. In the opinion of the supreme court, holding the railroad company liable, it was said: "The law regards practical distinctions rather than...
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