Indiana Springs Co. v. Brown
| Decision Date | 01 June 1905 |
| Docket Number | 20,612 |
| Citation | 74 N.E. 615,165 Ind. 465 |
| Parties | Indiana Springs Company v. Brown |
| Court | Indiana Supreme Court |
Rehearing Denied November 14, 1905.
From Fountain Circuit Court; Joseph M. Rabb, Judge.
Action by Thomas Brown against the Indiana Springs Company. From a judgment for $ 925, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p 590.
Affirmed.
James McCabe and Edwin F. McCabe, for appellant.
C. V McAdams, for appellee.
This is an action by appellee to recover for personal injuries and injuries to his horse and buggy alleged to have been the result of appellant's negligence in unreasonably and unnecessarily speeding and refusing to stop or slow up its automobile, thereby causing the plaintiff's horse to take fright and run away. The complaint is in two paragraphs, alike in all respects, except one is for personal injuries, and the other for damages to the horse and buggy. A demurrer to each paragraph of the complaint was overruled. Answer, the general denial. Trial by jury. Verdict and judgment for appellee, from which the defendant appeals. The assignment challenges the action of the trial court in overruling the demurrers and the motion for a new trial.
Each paragraph of the complaint for negligence is based on two grounds: (1) Violation of the speed ordinance of the city of Attica; and (2) negligence in operating the automobile. The court excluded from the jury the ordinance relied upon, and it is manifest from the record that the case was tried upon the charge of negligence in operating the motor carriage. Among other things, it is alleged that the automobile complained of was twelve feet long, five feet wide, eight and one-half feet high, had a canopy top, elevated seats for passengers, was painted red, propelled by a gasoline engine, made a great noise, was the first machine of the kind in the community, and its appearance and unusually rapid and noisy movement in the highway were calculated to, and did, greatly frighten horses unaccustomed to see the like; that on May 10, 1902, the plaintiff and companion were traveling in a buggy, drawn by one horse, to the city of Attica. The horse was gentle and well broken, but had never before met an automobile in the highway. Having passed over the bridge of the Wabash river, and while descending the approach thereto, which is twenty feet wide, with precipitous banks and guard fence on each side for a distance of 230 feet to a cross-street, the defendant, by its servants and agents in charge of said automobile, approached the plaintiff from the opposite direction, driving said machine along the highway at great speed, to wit, twenty miles an hour, thereby causing it to give forth a loud whirring, puffing, buzzing noise, that could be heard several hundred yards. As soon as the automobile approached within seeing and hearing distance, plaintiff's horse became greatly frightened at the appearance, sound and approach of the same, and plaintiff and his companion signaled and called out to said servants and agents to stop until the plaintiff and his companion could escape on said cross-street. The said servants and agents could plainly see, and did see, from the horse's conduct, that he was greatly frightened, and could have stopped the machine before it reached and passed the plaintiff, "but the plaintiff avers said servants so in charge of such automobile wholly disregarded the plaintiff's signals and entreaties to stop, but, on the contrary, negligently, wantonly and insolently continued to drive the monster machine upon the plaintiff and his horse at the reckless speed and in the reckless and negligent manner aforesaid, and, when the same came up to the plaintiff and his conveyance, his horse became thereby so frenzied with fright, caused by the rapid speed, unsightly and unusual appearance of the machine, and the unusual and alarming noises given forth by it, that it became wholly unmanageable and beyond control, and did run away and overturn the buggy, throwing the plaintiff out, whereby," etc.
It can not be said as matter of law that appellant was guilty of negligence for using an automobile as a means of conveyance on the public highway. The law does not denounce motor carriages, as such, on the public ways. For so long as they are constructed and propelled in a manner consistent with the use of highways, and are calculated to subserve the public as a beneficial means of transportation, with reasonable safety to travelers by ordinary modes, they have an equal right with other vehicles in common use to occupy the streets and roads. Because novel and unusual in appearance, and for that reason likely to frighten horses unaccustomed to see them, is no reason for prohibiting their use. In all human activities the law keeps up with improvement and progress brought about by discovery and invention, and, in respect to highways, if the introduction of a new contrivance for transportation purposes, conducted with due care, is met with inconvenience and even incidental injury to those using ordinary modes, there can be no recovery, provided the contrivance is compatible with the general use and safety of the road.
It is therefore, the adaptation and use, rather than the form or kind of conveyance, that concerns the courts. It is improper to say that the driver of the horse has rights in the road superior to the driver of the automobile. Both have the right to use the easement, and each is...
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