Cleveland v. Wynant

• Citation: 17 N.E. 118,114 Ind. 525
• Parties: Cleveland, C., C. & I. Ry. Co. v. Wynant.
• Decision Date: 15 May 1888
• Court: Supreme Court of Indiana

114 Ind. 525

17 N.E. 118

Cleveland, C., C. & I. Ry. Co.

v.Wynant.

Supreme Court of Indiana.

May 15, 1888.

Appeal from circuit court, Madison county; D. Moss, Judge.

H. H. Poppleton and Robinson & Lovett, for appellant. H. D. Thompson, for appellee.

Mitchell, C. J.

Action by Harriet Wynant against the appellant railway company to recover damages for injuries alleged to have been suffered by the plaintiff from the overturning of her carriage, the horses having taken fright at a box car, which, it is charged, the company unlawfully and negligently permitted to be and remain partially in and upon a public highway over which the plaintiff was traveling. The case was considered once before by this court, and reversed because the evidence did not sustain the verdict of the jury. 100 Ind. 160. A second trial has been had, with the result that judgment has again been rendered for the plaintiff. The case is before us a second time upon the same pleadings, and, according to the insistance of appellant's counsel, upon substantially the same evidence. Waiving any observations concerning the sufficiency of the evidence, or whether it is in any essential respect variant from what it was before, it is enough to say the judgment must be reversed for errors hereinafter pointed out. To sustain her case, the plaintiff gave evidence tending to show that certain empty, and, for the time being, unused, freight cars, which had been stored on a short railway track which diverged from the company's main line to a gravel pit, had been permitted to encroach from five to eight feet on either side of a public highway, over which the above-mentioned track lay, leaving a space of from 15 to 25 feet in width of the traveled way between the projecting cars. There was evidence tending to show that the plaintiff and her husband were passing over the highway in a vehicle drawn by two gentle horses. When about to go upon the railway track, between the cars, without having previously shown any sign of fear, the horses suddenly took fright, and became unmanageable. Whether they were frightened at an empty car, or at noise which proceeded from it, is immaterial to the questions to be decided. There was some evidence tending to show that a box car had encroached upon the road for several days prior to the accident. The railway company introduced evidence tending to show that the car had been let down on the highway on the day of the accident by the unauthorized interference of some boys with the brakes. The car was an ordinary empty box car, such as is in common use on all railroads. At the trial the plaintiff produced witnesses who testified that they had passed over the highway in question several days prior to that on which the accident happened, and after describing the situation of the cars as they then observed them, and the manner in which they then projected into the highway, they were permitted to testify, over objection, that their horses took fright or “shied” at the cars. Nothing appeared concerning the disposition of the horses driven by the several witnesses in respect to whether or not they were ordinarily gentle and well disposed, or whether they were under careful guidance, and so the evidence might have been excluded on that account. But, if these objections had been obviated, we can discover no sound principle which justified the admission of the evidence. The principal facts in dispute under the issues were, whether or not the railway company had unlawfully or negligently or unreasonably permitted its empty car to remain placed upon a public highway, thereby causing the horses attached to the carriage in which the plaintiff was seated to take fright and run away, resulting in an injury for which she was in no way blameable. The evidence admitted pertained to facts altogether aside from those in dispute, and in no way tended to raise a legal presumption as to the disputed facts. It could have had no other effect than to mislead the jury, and distract their attention from the real issues in the case. There is no fixed rule governing the frightening of horses. An object that may render one unmanageable from fear, another may pass without notice. It does not follow, because one or more may have taken fright at a given object in a highway, that the object was necessarily frightful to all gentle horses, nor does proof that a number of horses took fright at an object raise a legal presumption that another horse, on a different occasion, became frightened at the same object. Piollit v. Simmers, 106 Pa. St. 95; Railway Co. v. Glasscott, 4 Colo. 270;Newsom v. Railroad, 62 Ga. 339;Durbrow v. McDonald, 5 Bosw. 130; Wentworth v. Smith, 44 N. H. 419. The railway company was not bound to anticipate and make preparation to meet testimony of the character of that in question, nor would it have been heard to prove in rebuttal that other gentle horses had passed between the cars without taking fright, or that the horses which took fright were vicious and unsafe under ordinary circumstances. Bauer v. City of Indianapolis, 99 Ind. 56;Kidder v. Dunstable, 11 Gray, 342;Temperance Hall v. Giles, 33 N. J. Law, 260. Thus, in the case first above cited, it was held, in a suit against a city for an injury received in consequence of an obstruction upon a sidewalk, that it was not proper to admit evidence to show that others had passed over the same obstruction without injury. Where it becomes necessary to affect those charged with the duty of keeping highways, bridges, or other structures in a safe condition, or of keeping only competent persons in their service, with notice of defects or unfitness, or where the question is as to the safety or availability of a machine or contrivance designed for a particular purpose, or for practical use, evidence is admissible to show how the thing served when put to the use for which it was designed, in the one case, or that occurrences of a character to make the defect or incompetency notorious had taken place, in the other. Railway Co. v. Ruby, 38 Ind. 294;Railroad Co. v. Newell, 104 Ind. 264, 3 N. E. Rep. 836; City of Delphi v. Lowery, 74 Ind. 520;City of Fort Wayne v. Coombs, 107 Ind. 75, 7 N. E. Rep. 743; Railway Co. v. Wright, 16 N. E. Rep. 145, (present term.)

The present case does not come within the rule above stated. None of the occurrences described were of such a character as to convey notice to the railway company, or to be known to any others than the witnesses themselves. Evidence of other similar occurrences on other occasions is not admissible for the purpose of raising a presumption that the particular accident in question happened, or that the place was defective and dangerous, or that the situation was of such a character that the occurrence resulting in the injury complained of might well have taken place. The facts are the only legitimate evidence of the injury, and of the manner and cause of the occurrence. Ramsey v. Road Co., 81 Ind. 394;Collins v. Inhabitants of Dorchester, 6 Cush. 396;Hubbard v. City of Concord, 35 N. H. 52;Maguire v. Railroad Co., 115 Mass. 239;Hawks v. Inhabitants of Charlemont, 110 Mass. 110;Blair v. Pelham, 118 Mass. 420. The case is parallel in principle with Hudson v. Railway Co., 59 Iowa, 581, 13 N. W. Rep. 735. In that case the...