Effinger v. Ft. Wayne & W.V. Traction Co.

• Decision Date: 02 February 1911
• Docket Number: No. 21,817.,21,817.
• Citation: Effinger v. Ft. Wayne & W.V. Traction Co., 175 Ind. 175, 93 N.E. 855 (Ind. 1911)
• Court: Indiana Supreme Court
• Parties: EFFINGER v. FT. WAYNE & W. V. TRACTION CO.

175 Ind. 175

93 N.E. 855

EFFINGER

v.FT. WAYNE & W. V. TRACTION CO.

No. 21,817.

Supreme Court of Indiana.

Feb. 2, 1911.

Appeal from Circuit Court, Wells County; C. E. Sturgis, Judge.

Action by Ferdinand Effinger against the Ft. Wayne & Wabash Valley Traction Company. From a judgment of the Appellate Court (93 N. E. 32), affirming a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed, with directions to overrule demurrer.Mock & Sons, for appellant. Eichhorn & Vaughn, Barrett & Morris, and Samuel Morris, for appellee.

MORRIS, J.

This suit is brought by appellant against appellee. The circuit court sustained a demurrer to the complaint for want of facts. Appellant declined to plead further. Judgment was thereupon rendered in favor of appellee, from which judgment this appeal is prosecuted.

The only error assigned is in sustaining the demurrer. The complaint, omitting formal parts, is as follows: “The plaintiff complains of the defendant for complaint in the above-entitled cause, and for cause of action says and avers: That the defendant, the Ft. Wayne & Wabash Valley Traction Company, is a corporation, organized and doing business under the laws of the state of Indiana. That the business of said corporation is that of a common carrier, and in its said capacity of a common carrier it operates a line of railway between the city of Ft. Wayne, Ind., and the city of Bluffton, Ind., over which line of railway cars are propelled by means of electricity, said cars being what are commonly called interurban railway cars, and said line of railway being commonly called an interurban railway. That on and prior to the 27th day of September, 1906, the said defendant owned and was operating said railway as aforesaid. That for a mile north of the city of Bluffton said railway runs parallel with and on the west side of the public highway, and the center of said railway track is within 30 feet of the center of said public highway throughout said distance. That there was on said day a deep ditch on both sides of said public highway, and that for three-quarters of a mile south from the place of the accident hereinafter mentioned and complained of there were no trees of any kind, hills, or obstructions of any sort between said highway and said interurban railway. That on said 27th day of September, 1906, the plaintiff was in a single buggy, the top of which was up, which said buggy was drawn by a six year old horse that had always been gentle, quiet, and safe to drive, and was owned and driven at said time by one Luther Brown. That on said day the plaintiff and said Brown were seated in said buggy, and the horse was being driven by said Brown from the north towards said city of Bluffton on and along said public highway on the east side of said railway. That on said day said defendant was running one of its cars north from said city of Bluffton over said railway track at a rate of speed not less than 20 miles per hour at said time. That at said time said Brown was driving said horse in a careful manner on said public highway. That, when said horse and buggy were over 100 feet from said car as it was approaching said horse and buggy, said horse became frightened at said approaching car and the appearance thereof, and began to jump and rear. That said Brown threw up his hand, and signaled the motorman in charge of said car to stop. That, while said horse was so frightened, jumping, and rearing at the approach of said car, defendant's agent and motorman saw and was fully aware of the frightened condition of said horse and the cause thereof in ample time to have stopped the speed of said car and the motion thereof, in time to have prevented the injuries to the plaintiff hereinafter complained of, and said motorman and agent of the defendant in charge of said car, with full knowledge of the facts aforesaid, carelessly, negligently, and unlawfully failed, refused, and neglected to stop or check the speed of said car, though signaled and requested to do so by said Brown, and negligently and carelessly ran said car at said high rate of speed of 20 miles per hour towards and in the direction of said horse and buggy in close proximity to them, thus greatly increasing the fright of said horse, by reason of which and on account of the negligence of said motorman and agent of the defendant as aforesaid it rendered it impossible for said Brown or this plaintiff to hold, manage, or control said horse. That, on account of the said negligence and carelessness of said motorman and agent of the defendant, the said horse was caused to jump into said ditch on the east side of said highway, and to upset said buggy in said ditch, thereby throwing the plaintiff violently against the east bank of said ditch on his shoulders and face, causing concussion from the shoulder to the hip joint, and going around the entire body, producing echymosis and great pain and anguish. That, had said motorman shut off the electricity from the motors on said car, the noise caused by said car would have been greatly lessened, and, had said car been...