Lake Erie & W.R. Co. v. Juday

• Decision Date: 09 March 1898
• Citation: 49 N.E. 843,19 Ind.App. 436
• Parties: LAKE ERIE & W. R. CO. v. JUDAY.
• Court: Indiana Appellate Court

19 Ind.App. 436

49 N.E. 843

LAKE ERIE & W. R. CO.

v.JUDAY.¹

Appellate Court of Indiana.

March 9, 1898.

Appeal from circuit court, Madison county; A. Ellison, Judge.

Action by David Juday against the Lake Erie & Western Railroad Company. From a judgment entered on a special verdict, and from an order denying a new trial, defendant appeals. Reversed.

Comstock and Black, JJ., dissenting.John B. Cochrum, W. E. Hackedom, and Chipman, Keltnar & Hendee, for appellant. D. H. Fernandes and Bagot & Bagot, for appellee.

WILEY, J.

Appellee sued appellant for injuries alleged to have been received by his horse running away, and throwing him out of his buggy, in which he was riding. The negligence charged against the appellant was that appellee's horse became frightened near a crossing of a highway and appellant's right of way and track by the approach of a hand car propelled by appellant's agents and servants, and the accident complained of resulted because of the negligence and carelessness of appellant's servants and agents in not stopping the hand car upon perceiving that appellee's horse was frightened, when they had full knowledge of the frightened condition of the horse, and the cause thereof. The complaint avers: That appellee was traveling on a public highway, known as the “Tipton Pike,” which highway ran east and west, and crossed and intersected with appellant's right of way and track at an acute angle. He was driving eastward, in a single buggy, to which was attached a horse, well broken and ordinarily gentle, and that he was accompanied by his daughter and one other person. That there was an orchard in full leaf on the north side of said highway and southeast of the railroad, in close proximity to the highway, which so obstructed the view as to prevent a person from seeing a hand car northwest of the crossing until reaching a point within about 80 to 100 feet distant from the crossing. The complaint then avers that: “While this plaintiff was so traveling on said highway, and while approaching said crossing, and carefully watching and listening for approaching trains or other objects upon said railroad that might endanger his safety, when he reached said point in said highway as aforesaid, the distance of about 80 to 100 feet from said crossing, the defendant, by its agents and servants, was running a hand car upon said railroad at a point northwest of said crossing, running in the direction of said crossing at a point about 100 feet to 150 feet northwest of said crossing, and running with great speed. That plaintiff had approached said point with great care as aforesaid, * * * and did not see said car until he had reached said point, nor had he any notice or knowledge that said car was running upon said track, or approaching said crossing, until he reached said point, nor could he have obtained such notice or knowledge by the use of ordinary care, nor could he see said car until he and said car had reached the points respectively aforesaid.” The complaint then avers that at that time, and for a long time prior thereto, appellant carelessly and negligently placed and maintained large piles of cross-ties upon said highway, near said crossing on the east side thereof, beginning about 40 feet from the railroad track, and extending eastward along the side of said highway a distance of about 75 to 100 feet; that said cross-ties occupied a considerable part of the width of said highway, and greatly obstructed and encroached upon the free use thereof by travelers using the same; that on the opposite side of said highway there was a ditch about three feet deep; that the only available space for travel upon said highway at said point was between said piles of cross-ties and said ditch, being a space of only about 16 feet in width. We quote now literally that part of the complaint charging negligence on the part of the appellant: “That, while the plaintiff was so driving as aforesaid, and after reaching the part and portion thereof so obstructed as aforesaid, and while his said horse and vehicle were so passing along and upon said narrow portion of said highway between said ties and said ditch, the said hand car, run and operated by the defendant, came to a point where the same could be seen from the highway; that said car was operated by a number of defendant's servants and agents, who were carrying a number of shovels and other tools used in the performance of their duties, * * * which shovels were bright and glistening, and, together with said hand car and the manner of propelling the same, together with its great speed and velocity, was calculated to frighten a horse of ordinary gentleness; * * * that at the instant he saw said hand car his horse also saw the same, and became frightened at the appearance and approach thereof; that by reason of the obstruction of said highway as aforesaid * * * the plaintiff was unable to turn back or retreat from said place; that the defendant, by its agents and servants, was running said hand car in the direction of said crossing, and rapidly approaching and coming near said horse as aforesaid, and, the plaintiff being unable to hold, control, or managehis said horse on account of his fright, so caused as aforesaid, although using all his efforts and power to control him, and being unable to turn and retreat for the reason aforesaid, said horse plunged forwards, and ran forwards, and away on and over said track, on account and by reason of the facts herein, and hereinbefore and hereinafter stated.” The complaint then avers that defendant's servants saw said horse when it first became scared, and knew the cause of his said fright in ample time to have stopped said car, but, with full knowledge of all the facts, carelessly, negligently, and unlawfully failed, refused, and neglected to so stop the car or check the speed thereof, though signaled and requested so to do, and then and there carelessly and negligently, with full knowledge of the facts aforesaid, and with full knowledge and notice that said horse was frightened and unmanageable as aforesaid, and that he was so frightened at the appearance of said car, and that said car could have been stopped and checked, and the said horse quieted, did negligently and carelessly run said car with great speed towards said crossing in the direction of said horse, and in close proximity to him, thus greatly increasing his fright, which rendered it impossible for appellee to hold, manage, or control him, and he plunged forward, and ran away, in spite of appellee's best efforts, and upset and overturned his buggy, throwing him to the ground, to his injury, etc. The complaint further avers that, if appellant's servants had stopped said car as soon as they could have done so with reasonable effort after seeing the frightened condition of the horse, appellee could have controlled and quieted him, and thus have prevented and avoided the injuries of which he complained. The complaint concludes with an averment that the injuries he received were without any fault or carelessness on his part.

Upon appearing to the action, appellant filed a petition and bond for the removal of the cause to the United States circuit court, which petition the court overruled. Appellant then filed a plea in abatement, to which a demurrer was sustained. Appellant demurred to the complaint for want of sufficient facts, which demurrer was overruled. Appellant also moved in writing to strike out parts of the complaint, but this motion was also overruled. An answer in general denial was filed, trial by jury, special verdict, and judgment thereon for appellee. Appellant moved for judgment on the special verdict in its favor, which motion the court overruled. Appellant's motion for a new trial was also unavailing. Error is assigned as follows: First. The complaint does not state facts sufficient to constitute a cause of action. Second. The court erred in overruling the appellant's petition for removal to the United States circuit court. Third. The court erred in sustaining appellee's demurrer to appellant's plea in abatement. Fourth. The court erred in overruling appellant's motion to strike out parts of the complaint. Fifth. The court erred in overruling the appellant's motion for judgment in its favor on the special verdict. Sixth. The court erred in overruling the appellant's motion for a new trial. Seventh. The court erred in sustaining the appellee's motion for judgment in his favor on the special verdict.

The first assignment of error discussed by appellant is the second in order, which calls in review the action of the court in overruling its petition to remove the cause to the federal court. It is contended that it is shown in the body of the complaint that the amount involved exceeds $2,000, and, as the appellant is a foreign corporation and the appellee is a citizen of Indiana, as averred in the petition to remove, the cause was removable, and it was error to overrule the petition. The complaint, after describing the injuries appellee received, contains this averment: “By reason of which he [appellee] was greatly and permanently disabled, and made to suffer great bodily pain and mental anguish, to his damage in the sum of ten thousand dollars.” The prayer of the complaint is as follows: “Wherefore plaintiff demands judgment for one thousand nine hundred and ninety-nine and 99/100 dollars.” Under the provisions of the federal statute, a cause may, upon proper application and bond, be removed from a state court to the federal court having jurisdiction when the amount in controversy exceeds $2,000, and such controversy is between citizens of different states. It is the duty of the court, in deciding whether a cause is removable under this statute, to look to both the complaint and petition for removal. If it appears from the complaint that the amount involved exceeds $2,000, and from the petition that the controversy is between citizens of...