Fort Wayne And Wabash Valley Traction Company v. Miller

• Decision Date: 17 November 1911
• Docket Number: 7,333
• Citation: Fort Wayne And Wabash Valley Traction Company v. Miller, 96 N.E. 496, 48 Ind.App. 633 (Ind. App. 1911)
• Parties: FORT WAYNE AND WABASH VALLEY TRACTION COMPANY v. MILLER
• Court: Indiana Appellate Court

96 N.E. 496

48 Ind.App. 633

FORT WAYNE AND WABASH VALLEY TRACTION COMPANY v. MILLER

No. 7,333

Court of Appeals of Indiana

November 17, 1911

From Allen Circuit Court; E. O'Rourke, Judge.

Action by Sebastian Miller against the Fort Wayne and Wabash Valley Traction Company.From a judgment for plaintiff, defendant appeals.

Affirmed.

Barrett & Morris, for appellant.

Harper & Eggeman and Leonard & Townsend, for appellee.

OPINION

HOTTEL, J.

This was an action for damages on account of personal injuries received by appellee in a runaway, alleged to have been caused by the negligent operation of one of appellant's interurban cars.

Appellee filed three paragraphs of complaint, but dismissed the first of these, and proceeded upon the other two, to each of which a demurrer was overruled and exception given to appellant.The case was put at issue by an answer in general denial, and upon a trial the jury returned a general verdict for plaintiff for $ 5,000, with its answers to interrogatories.Appellee remitted $ 1,000 from this verdict, and the court rendered judgment in his favor for $ 4,000.A motion for a new trial was overruled.

The errors assigned and relied on are the rulings of the court on the demurrers to the second and third paragraphs of complaint, and on the motion for new trial.

Appellant urges that the second paragraph of the complaint is insufficient for the following reasons: It fails to aver (1) "either specifically or in equivalent terms that the objects or acts done by appellant had a tendency to or were likely to frighten a horse of ordinary gentleness; (2)"that appellee's horse was a horse of ordinary gentleness;"(3) that the noises were not "incidental to the use of appellant's interurban cars on the highway described in the complaint," and "were not necessary to the proper and safe operation of said car, or related to the traveling public, or to persons driving horses * * * of ordinary gentleness."

In answer to the first objection it is sufficient to say that the allegations of the complaint show that the operation of appellant's car did in fact cause appellee's horse to become frightened; that said horse, when it became so frightened, was being driven, hitched to a covered buggy with the top up, in which appellee and his daughter were being conveyed along one of the much-used public streets in the city of Fort Wayne, running north and south through a populous part of said city; that appellant's interurban tracks, which were double occupied the center of said street leaving a very narrow space on each side thereof, between the outer rails and the sidewalk, "affording barely sufficient room for an interurban car to pass a buggy;" that appellee's horse, when it became frightened, was being driven in said narrow space on the west side of said street, in a southerly direction; that for a quarter of a mile or more said horse was in view of the operators of appellant's said car, which was approaching from the rear at "the excessive rate of speed of about thirty miles an hour," which excessive speed created unusual and unnecessary noises, causing said horse, which was "city broke and gentle, and had been driven around street-cars interurban cars and railroad trains with perfect safety," and was then being driven by appellee"in a prudent and careful manner," and was "under complete control," to become frightened; that appellant's servants operating said car were so situated that they could and should have seen that said horse was so frightened, and that appellee's situation was a dangerous and perilous one, and that his situation was such that he could not escape from appellant's car; that under such circumstances appellant's servants gave no heed to appellee's perilous position, but carelessly and negligently continued the reckless speed of said car, and carelessly, unnecessarily and negligently, and without any regard whatever to the safety of said appellee and his daughter, blew the whistle, which gave forth such a very loud and piercing noise that appellee's horse became so frightened that he lost control of it; that the operator of said car, although he knew, or could have known, that said appellee was losing control of said horse, and that said horse was running away, unnecessarily, carelessly and negligently continued to blow the whistle and increase the speed of said car in his endeavor to pass appellee, and pursued him 400 feet, and finally passed said horse at a time when it was running away and appellee had lost control over it; that said operator, by the exercise of ordinary care, could have known that said horse was running away, and that if he continued to blow the whistle and pursue said horse down the street serious injury would result to appellee.

We have indicated enough of the substance of this paragraph of the complaint to show that it is entirely sufficient under a very recent holding of the Supreme Court.

Appellant's objections to this paragraph of complaint would indicate that it mistakes the theory upon which such paragraph proceeds.While this paragraph alleges that appellant, by the operation of its car in the manner charged, caused appellee's horse to take fright, its theory is that appellant caused the horse to take fright at a time and place, and under such circumstances, as to put appellee in imminent peril from which he could not extricate himself, and that, seeing and knowing appellee's perilous situation, appellant carelessly, negligently and unnecessarily so operated its car as to increase such peril, and thereby caused the horse to run away, with the resulting injuries to appellee.This is actionable negligence.Effinger v. Fort Wayne, etc., Traction Co.(1911), 175 Ind. 175, 93 N.E. 855;Indianapolis Union R. Co. v. Boettcher(1892), 131 Ind. 82, 28 N.E. 551;Louisville, etc., R. Co. v. Stanger(1893), 7 Ind.App. 179, 195, 32 N.E. 209;Lake Erie, etc., R. Co. v. Juday(1898), 19 Ind.App. 436, 49 N.E. 843;Kentucky, etc., Bridge Co. v. Montgomery(1902), 139 Ky. 574, 67 S.W. 1008, 51 L. R. A. 781.

The case of Effinger v. Fort Wayne, etc., Traction Co., supra, is especially applicable to this case, and is decisive of the question of the sufficiency of the paragraph in question as against all the objections urged against it.

Appellee does not question appellant's right to run its cars over the highway, or to make such noises as are necessary, usual and incidental thereto, but bases his complaint upon a negligent and wilful misuse of those rights at a time when appellee's perilous situation must have been evident to the operator of the car, and when such misuse might reasonably be expected to increase appellee's danger.

In the case of Effinger v. Fort Wayne, etc., Traction Co., supra, the Supreme Court said: "It is not sought in this complaint to charge defendant with negligence in the first instance, by reason of either the speed of the car or its appearance, but the theory of the pleading is that plaintiff was in a situation of imminent peril, and defendant, with full knowledge of the situation, increased that peril, and thereby caused the injury.It may be stated as a general rule, that when one sees another in imminent peril from which he cannot extricate himself, it is the duty of the former so to act as not to increase the peril, and if he does act in a manner to increase the danger after knowledge thereof, he is guilty of negligence."

In the same case the following is quoted with approval from Culp v. Atchison, etc., R. Co.(1887), 17 Kan. 475: "That a party has a right to do a given act at certain times and under certain circumstances, does not prove that the same act is right under all circumstances, and at all times."

In support of its contention that the complaint is defective in failing to aver that appellee's horse was a horse of ordinary gentleness, appellant cites Shrum v Board, etc.(1895), 13 Ind.App. 588, 592.The complaint in the case at bar is sufficient, even under that authority, on the subject of appellee's contributory negligence, in that it...