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

• Decision Date: 29 November 1910
• Docket Number: No. 6,873.,6,873.
• Citation: Effinger v. Ft. Wayne & W.V. Traction Co., 93 N.E. 32 (Ind. App. 1910)
• Court: Indiana Appellate Court
• Parties: EFFINGER v. FT. WAYNE & W. V. TRACTION CO.

93 N.E. 32

EFFINGER

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

No. 6,873.¹

Appellate Court of Indiana, Division No. 1.

Nov. 29, 1910.

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

Action by Ferdinand Effinger against the Ft. Wayne & Wabash Valley Traction Company. From the judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Mock & Sons, for appellant. Eichhorn & Vaughn, Barrett & Morris, and Samuel L. Morris, for appellee.

HADLEY, P. J.

This is a suit brought by appellant against appellee for damages for injuries sustained. The complaint avers: That appellee owns and operates an interurban railway with cars propelled by electricity, between Ft. Wayne and Bluffton. That for a mile north of the city of Bluffton said railway runs parallel with the public highway; the center of said railway track being 30 feet from the center of said highway throughout said distance. That there was a deep ditch on both sides of said highway. That for three-fourths of a mile south from the place of the accident there were no trees, hills, or obstructions of any kind between said highway and said railway. That on September 27, 1906, appellee was in a single top buggy, the top of which was up. That 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 appellant and Brown were driving said horse from the north towards said city of Bluffton, on and along said public highway. That at said time appellee was running one of its cars north from said city of Bluffton over its railway track at a rate of speed not less than 20 miles per hour. That at said time said Brown was driving said horse in a careful manner. 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 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, and, while said horse was so frightened, jumping, and rearing at the approach of said car, appellee'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 appellant hereinafter complained of. That said motorman and agent of appellee 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 as aforesaid, it rendered it impossible for said Brown or this appellant to hold, manage, or control said horse. That on account of said negligence of said motorman said horse was caused to jump into said ditch on the east side of said highway opposite said buggy, thereby...