Indianapolis & Cincinnati Traction Co. v. Montfort

• Decision Date: 05 June 1923
• Docket Number: No. 11481.,11481.
• Citation: 139 N.E. 677,80 Ind.App. 639
• Court: Indiana Appellate Court
• Parties: INDIANAPOLIS & CINCINNATI TRACTION CO. v. MONTFORT.

80 Ind.App. 639

139 N.E. 677

INDIANAPOLIS & CINCINNATI TRACTION CO.

v.MONTFORT.

No. 11481.^*

Appellate Court of Indiana, Division No. 2.

June 5, 1923.

Appeal from Circuit Court, Decatur County; Alonzo Blair, Special Judge.

Action by Elmore M. Montfort against the Indianapolis & Cincinnati Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.Thomas E. Davidson, of Greensburg, and Donald L. Smith, of Rushville, for appellant.

Myron C. Jenkins, of Greensburg, for appellee.

NICHOLS, J.

This is the second appeal of this case. The opinion of the Supreme Court in the first appeal is reported under the title of Montfort v. Indianapolis, etc., R. Co., 189 Ind. 683, 128 N. E. 842.

The only error presented in this appeal is the action of the court in overruling appellant's motion for a new trial.

[1] The facts involved are substantially as set out in the former opinion, and we do not need here to repeat them. Appellant contends that the verdict is not sustained by the evidence, for the reason that there was no evidence that the rails of appellant were carrying any electric current at the time of the accident. But it appears by the evidence that witnesses had seen flashes of light passing between the joints of the rails at the place of the accident before the accident, and especially for two or three days theretofore, and that other horses had received shocks of electricity at various times before the accident to appellant occurred, this evidence being substantially as in the former trial. The Supreme Court in the former opinion ways that such evidence was sufficient to justify the jury in finding that the tracks were charged with electricity at the crossing involved, which it does so find by its general verdict at the last trial.

[2][3][4] Appellant complains that evidence of other horses being shocked at the crossing where the accident occurred is not admissible. But we cannot agree with this contention. It is a well-established principle that collateral evidence is admissible to show the happening of prior occurrences of a similar character under the same circumstances as the one involved, upon the ground that it tends to show that the place of the accident had been demonstrated to be unsafe and dangerous. Brady v. Manhattan R. Co., 127 N. Y. 46, 27 N. E. 368. Gillett on Indirect and Collateral Evidence, § 63, says:

“This doctrine has been applied to cases where persons driving upon a street or highway have been injured by a defect in the way, as the fact of prior accidents tends to show the unfitness of the way for public travel.”

A person traveling on a public highway has a right to expect such highway to be free from unusual dangerous agencies put in such highway by others. Thompson on Law of Electricity, § 78; Valparaiso Lighting Co. v. Tyler, 177 Ind. 278, 96 N. E. 768.

In Cleveland, etc., R. Co. v. Newell, 104 Ind. 275, 3 N. E. 836, 54 Am. Rep. 312, an injury was caused by the breaking of one of appellant's rails, and one of the questions involved was as to the admissibility of evidence of other rails having been broken shortly before at the same place, and the court holding that such evidence was admissible says:

“The fact that a number of such rails, so adjusted, had broken in quick succession at the same place, would tend to invite attention to that place, and also to raise an inference that the roadway was defective. This inference will be strong or weak, in proportion to the number and rapidity of such occurrences. But whether strong or weak, it was competent to be considered for what it was worth.”

The case of Louisville, etc., R. Co. v. Lange, 13 Ind. App. 338, 41 N. E. 610, involved a question of damages from fire, and the court said:

“The evidence of other fires started along the line of the road by appellant's engines about the time of the occurrences in controversy was properly admitted under the authority of Evansville, etc., R. Co. v. Keith, 8 Ind. App. 57.”

This case admitted evidence of other fires on the ground that it tended to show the negligent habits of the officers and agents of the railroad company.

Other authorities holding the competency of such evidence are: Ft. Wayne v. Coombs, 107 Ind. 87, 7 N. E. 743;Gagg v. Vetter, 41 Ind. 228, 13 Am. Rep. 322;Cleveland, etc., R. Co. v. Wynant, 114 Ind. 529, 17 N. E. 118, 5 Am. St. Rep. 644;Louisville. etc., R. Co. v. Wright, 115 Ind. 393, 16 N. E. 145, 17 N. E. 584, 7 Am. St. Rep. 432;Laurie Co. v. McCullough, 174 Ind. 494, 90 N. E. 1014, 92 N. E. 337;United States v. Great Northern, etc., R. Co., 220 Fed. 634, 136 C. C. A. 238; note 32 L. R. A. (N. S.) 1087; Thompson on Negligence, § 370; Calkins v. City of Hartford, 33 Conn. 57, 87 Am. Dec. 194.

[5] Appellant complains of instruction No. 2, requested by appellee and given by the court, because such instruction stated that “if defendant, in operating its railway line, transmitted or ran on the rails of said line, powerful currents of electricity,” etc. Appellant says that there was an entire failure of proof of any powerful current being transmitted by the rails. But we do not so interpret the evidence. As mentioned above there was evidence of numerous horses having been shocked at the crossing of appellant's tracks where the injury complained of occurred and of flashes and sparks of electricity from the rails at said crossing. This evidence was sufficient to justify the challenged statement in the instruction.

[6] Instruction No. 7, requested by appellee and given by the court, is challenged by appellant because it authorized the jury to take into consideration the dangerous character of the electric current and its capacity for injury to persons coming in contact therewith. Appellant objects to this instruction for the reason that it is not supported by any evidence. We think otherwise. There was evidence from which the dangerous character of electricity could readily be inferred by the jury, but, even if there had been no such evidence, the jury is not required to shut its eyes to the existence of such a dangerous agency.

[7] Instruction No. 9 contains a statement that-

“In determining whether the bonding of defendant traction company's rails were defective and whether there was a leakage of electric current, as alleged in the complaint, you should consider whether or not the earth on or near said crossing was charged with electricity at or reasonably near the time of the said injury; whether the electric current would leak from said rails if the bonding thereof were in good condition; whether other horses suffered an electric shock at said crossing under similar circumstances and at a time reasonably near to the occurrence alleged in the complaint;...