Ft. Wayne & Wabash Valley Traction Co. v. Miller

• Decision Date: 17 November 1911
• Docket Number: No. 7,333.,7,333.
• Citation: Ft. Wayne & Wabash Valley Traction Co. v. Miller, 48 Ind.App. 633, 96 N.E. 496 (Ind. App. 1911)
• Court: Indiana Appellate Court
• Parties: FT. WAYNE & WABASH VALLEY TRACTION CO. v. MILLER.

48 Ind.App. 633

96 N.E. 496

FT. WAYNE & WABASH VALLEY TRACTION CO.

v.MILLER.

No. 7,333.

Appellate Court of Indiana, Division No. 1.

Nov. 17, 1911.

Appeal from Circuit Court, Allen County; E. O. Rouke, Judge.

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

Barrett & Morris, for appellant. Harper & Eggeman and Leonard & Townsend, for appellee.

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 appellant's interurban car. Appellee filed three paragraphs of complaint, but subsequently 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 trial the jury returned a general verdict in the sum of $5,000, with their answers to interrogatories. Appellee, by his counsel, remitted $1,000 from this verdict and the court rendered judgment in his favor for $4,000. Motion for new trial overruled. The errors assigned and relied upon are the rulings of the court upon the demurrers to the second and third paragraphs of complaint and the motion for new trial.

[1] Appellant urges that the first paragraph of the complaint is insufficient for the following reasons: (1) Because it fails to aver “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) Because it fails to aver “that appellee's horse was a horse of ordinary gentleness.” (3) Because it fails to aver that the noises set out 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 his 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 do show that the operation of appellant's car did in fact cause the plaintiff's horse to become frightened. That said horse when it became so frightened was being driven to a covered buggy with the top up, in which plaintiff and his daughter were being conveyed along one of the much used public streets in the city of Ft. Wayne, running northerly and southerly through a populous part of said city; that the appellant's interurbantracks, which were double, occupied the center of said street leaving a very narrow space upon either side of the same, 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, in view of the operators of appellant's said car “for at least *** a quarter of a mile or more,” which was approaching from the rear at “the excessive rate of speed of about thirty miles an hour,” which “excessive *** speed caused *** unusual, excessive, and unnecessary noises” that caused appellee's horse which was “city broke, gentle, and could be and had been driven around street or interurban cars and railroad trains with perfect safety” and was then being driven by appellee “in a prudent and careful manner” and “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 environment and surroundings were such that he could not escape or get away from appellant's oncoming car; that under such circumstances appellant's servants operating said car gave no heed to appellee's perilous position, but carelessly and negligently continued the reckless speed and approach of said car, appellee's horse taking greater fright, “and carelessly, unnecessarily, and negligently and without any regard whatever to the safety of said plaintiff and his daughter blew *** the whistle *** which gave forth very loud *** and piercing noises, *** which caused plaintiff's horse to become very much more frightened, and *** plaintiff lost control of said horse”; that “the operator of said car although he knew or could have known *** that said plaintiff was losing control of said horse, and that the said horse was running away, unnecessarily, carelessly, and negligently continued to blow his whistle and increase the speed of said car in his endeavor to pass said plaintiff, *** and pursued plaintiff *** four hundred feet,” and finally passed said plaintiff's horse “at a time when it was running away, and *** plaintiff had lost control over him ***; that said operator by the exercise of ordinary care, should have known and could have known that said horse was running away, and if he continued to blow his whistle and pursue said plaintiff down the street that serious injury would result to *** plaintiff.”

We think we have indicated enough of the substance of this paragraph of the complaint to show that it is entirely sufficient upon the theory upon which it proceeds, under a very recent holding of the Supreme Court. Appellant's objections to this complaint would indicate that it mistakes the theory upon which it proceeds. While this paragraph charges that appellant by the operation of its car in the manner charged in the first instance 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 the plaintiff 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 off with the resulting injuries to appellee. This is actionable negligence. Effinger v. Ft. Wayne and W. V. Trac. Co., 93 N. E. 855;Indianapolis, etc., Ry. Co. v. Boettcher, 131 Ind. 82, 28 N. E. 551;Louisville, etc., Ry. Co. v. Stanger, 7 Ind. App. 179-195, 32 N. E. 209, 34 N. E. 688;Lake Erie, etc., Ry. Co. v. Juday, 19 Ind. App. 436, 49 N. E. 843;Kentucky Bridge Co. v. Montgomery, 139 Ky. 574, 67 S. W. 1008, 51 L. R. A. 781.

The case of Effinger v. Fort Wayne, etc., Trac. Co., supra, is specially applicable to this case and is decisive of the question of its sufficiency as against all objections urged against it.

Appellee does not question the 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 willful misuse of those rights at a time when appellee's perilous situation must have been evident to the operator of the car, the appellant's servant, and when such misuse might reasonably be expected to increase appellee's danger.

As stated above, the case of Effinger v. Ft. Wayne & Wabash Valley Traction Co., supra, is squarely in point. In that case the Supreme Court say: “It is not sought in this complaint to charge the defendant with negligence in the first instance by reason either of 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 afterwards 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 such person to so act as not to increase the peril, and, if he does act in a manner to increase the danger, after he has knowledge thereof, it is negligence.” In the same case the following is quoted with approval from Culp v. Atchison, etc., R. Co., 17 Kan. 475: “That a party has a right to do a given act at...