Indianapolis & G. Rapid Transit Co. v. Haines

• Decision Date: 10 December 1903
• Citation: 33 Ind.App. 63,69 N.E. 187
• Parties: INDIANAPOLIS & G. RAPID TRANSIT CO. v. HAINES.
• Court: Indiana Appellate Court

33 Ind.App. 63

69 N.E. 187

INDIANAPOLIS & G. RAPID TRANSIT CO.

v.HAINES.¹

Appellate Court of Indiana, Division No. 1.

Dec. 10, 1903.

Appeal from Circuit Court, Henry County; W. O. Barnard, Judge.

Suit by Jacob M. Haines against the Indianapolis & Greenfield Rapid Transit Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Wm. A. Brown and Binford & Walker, for appellant. Forkner & Forkner and Marsh & Cook, for appellee.

ROBINSON, J.

Suit for personal injuries. Appellee avers in his complaint that the appellant's track runs along and upon a public highway known as the “Old National Road”; that appellant's cars are propelled by electricity, and the usual speed at which the cars are run is about 25 miles per hour; that on the 8th day of October, 1900, appellee was driving along the highway in a spring wagon, with a top attached, drawn by one horse; that he was driving in a prudent and careful manner, and had the horse completely under his control; that while so driving one of appellant's cars approached appellee, which car had attached to the front end thereof a large banner, composed of white cloth or muslin, upon which were printed large, black letters, advertising a street carnival which was at that time about to be given or was being held in the city of Indianapolis; that the place where appellee received his injuries, as hereinafter stated, was in the public highway, and upon the railroad track, at a point about 3 1/2 miles west of the city of Greenfield, to which place appellee was traveling; that the body of the car was painted a light ocher, “which was a strong background for displaying the banner or advertisement, which, together with the motion and speed of the car, agitated the same in such a manner as rendered it highly dangerous, and well calculated to attract the notice, and frighten horses unaccustomed thereto,” passing along the highway; that appellee's horse was gentle, and accustomed to the approach and passage of cars in the ordinary way, but was not accustomed to the carrying of any extraordinary contrivances for the purpose of attracting the attention of the public; that the banner was not necessary for the proper management or running of the car, or in any manner required in the operation of the road, but was a method negligently and carelessly adopted and being used by the appellant of advertising the street carnival along its route; that when appellee observed the approach of the car, anticipating that the horse might become frightened, he had the horse under complete control, but, when the horse saw the same rapidly approaching, he became and was frightened by such sign, and became uncontrollable, turned upon the railroad track, and upset the wagon in which appellee was sitting, throwing appellee upon the track and under the wagon, all through the fault, negligence, and carelessness of the appellant as aforesaid; that appellee, through the appellant's “fault, negligence, and carelessness as aforesaid,” sustained serious and permanent injuries. The theory of the pleading is that the injury was caused by reason of appellee's horse becoming frightened at a sign or banner on the car which appellee met while driving along the highway, and that the sign or banner was not necessary to the operation of the car. It is averred that the banner, together with the speed and motion of the car, which agitated the banner, made it dangerous, and calculated to attract the notice of and frighten horses unaccustomed thereto, passing along the highway; that the banner was not necessary in the proper management and running of the car, or in any manner required in the operation of the road, but was purely a method negligently and carelessly adopted and being used by appellant of advertising a street carnival along its route. The complaint sufficiently shows appellant's negligence, and states a cause of action.

It is argued that certain instructions were erroneous, and that certain evidence was erroneously excluded.

The court gave the following instruction: “(4) The burden is upon the defendant to prove contributing negligence, if any, upon the part of the plaintiff.” In Indianapolis, etc., Ry. Co. v. Taylor, 158 Ind. 274, 63 N. E. 456-an opinion written since the case at bar was tried-an instruction reading, “But the burden of proving contributory negligence on the part of the plaintiff rests on the defendant,” was held erroneous. “It is sufficient,” said the court in that case, “to call attention to the inaccuracy of any instruction that requires, in express terms or impliedly, that the contributory negligence of a plaintiff must be proved by the defendant. The jury should be informed that it is sufficient it the...