Lane Bros. Co v. Barnard's Adm'r

• Decision Date: 12 January 1911
• Parties: LANE BROS. CO. v. BARNARD'S ADM'R.
• Court: Virginia Supreme Court

69 S.E. 969

111 Va. 680

LANE BROS. CO.

v.BARNARD'S ADM'R.

Supreme Court of Appeals of Virginia.

Jan. 12, 1911.

1. Highways (§ 181^*) — Use of Highway — Frightening Animals.

Where defendant is lawfully improving a road, it is not responsible for the appearance of the machinery or for the noises usual in its operation, though the noises are such as to frighten horses, if it takes proper precautions, and it is liable for damages in case a runaway is caused by the noises or the operation of the machine only in case of negligence.

[Ed. Note.—For other cases, see Highways, Cent. Dig. § 469; Dec. Dig. § 181.*]

2. Highways (§ 184*)—Use op Highway-Frightening Animals—Evidence.

In an action for damages for the death of plaintiff's intestate alleged to have been caused by the negligence of defendant in its operation of machinery used in improving a highway, evidence held insufficient to sustain a finding of the jury for plaintiff.

[Ed. Note.—For other cases, see Highways. Dec. Dig. § 184.*]

Error to Corporation Court of City of Lynchburg.

Action by Barnard's administrator against Lane Brothers Company. From a judgment for plaintiff, defendant brings error. Reversed and remanded.

Harrison & Long and F. C. Moon, for plaintiff in error.

Lee & Kemp, for defendant in error.

CARDWELL, J. This writ of error brings under review a verdict and judgment in the corporation court of the city of Lynchburg for $1,500, in an action brought by James S. Barnard's administrator against Lane Bros. Company for the recovery of damages for the death of plaintiff's intestate, caused, it is alleged, by the negligence of the defendant.

The substance of the charge of negligence made in the declaration is that the automatic safety valve on defendant's steam engine, at a point where defendant, on the Boonesboro Road, in the county of Campbell, near the city of Lynchburg, had placed certain road machinery for the purpose of macadamizing the road, under a contract with the county, was so adjusted as to discharge steam in sudden streams and clouds horizontally or laterally across, over, into, and upon said road, and from five to six feet above it; that these discharges of steam and hot mist and water were of an extraordinary, unusual, and frightening character, such as naturally tended and were calculated to frighten, terrify, ' and cause to become uncontrollable horses of ordinary gentleness and training, and thereby liable to cause injury and death to the traveling public; that the said automatic safety or pop valve and pipe attachments were so recklessly and carelessly maintained and operated that the steam, hot mist.etc., which said safety or pop valve from time to time ejected, emitted, discharged, etc., were ejected, emitted, etc., in sudden streams and clouds over and upon said road as aforesaid; that the hissing, whistling, and penetrating noises and sharp reports produced by the operations of said safety or pop valve attachments in the ejection and release of steam were of an extraordinary, unusual, and frightful appearance, etc., and naturally tended and were calculated to frighten, terrify, etc., horses passing along said highway, all of which the defendant, its officers, etc., knew, or by exercising ordinary care would have known; and that the defendant also recklessly, negligently, and carelessly failed to warn or take any precautions to guard the public generally, and especially the said James S. Barnard, in so traveling along and over said public road and highway, of or against the dangerous condition aforesaid, which the defendant had recklessly created and maintained.

The accident to plaintiff's intestate is described in the declaration as follows: The deceased was, on the 8th day of July, 1908, traveling along, over, and upon said public road and highway, as he had a right to do, at or near the place where the defendant had placed, located, and was maintaining its said steam boiler, engine, and said safety or pop valve and pipe attachments, and was exercising due care on his part, and was occupying a cart and driving a horse hitched to and drawing said cart, which horse was of ordinary gentleness and training, and was passing or about to pass by said engine and boiler, and upon the open passageway of said public road and highway, when there was suddenly ejected, discharged, and released from defendant's said steam boiler and engine, by means of its said automatic, safety or pop valve and pipe attachments in, over, and laterally and horizontally across and over said road and highway, a sudden stream, etc., of steam in front of, at or nearly at, the face, head, and foreparts of said horse, so that the head and body of said horse were partially enveloped in said steam, etc.; and at the same time there were produced by said safety or pop valve, etc., and the escaping steam, hissing and whistling noises and a sharp report near the said horse, which ejected steam in close proximity to said horse, and which said noises and said steam in like proximity to said horse were of such an unusual and extraordinary appearance and character as naturally tended and were well and reasonably calculated to frighten and terrify and render uncontrollable said horse, and did frighten and terrify said horse so that said horse plunged, reared, and became uncontrollable, whereby, and by reason thereof, the said James S. Barnard was, at and near said place, violently precipitated and hurled to the ground and upon said roadway, and thereby sustain ed injuries from which he afterwards, to wit, on the 31st day of July, 1909, died.

The defendant, under its plea of the general issue, claimed that it was in lawful occupation of the road with its machinery, and was not responsible for the noises and other occurrences usual in the operation of such machinery; that it was guilty of no negligence; and that, except for the negligence of the plaintiff's intestate in attempting to drive by the machinery without taking any precautions for his own safety, the accident complained of would not have occurred.

The record before us presents no question for our determination other than that arising from the refusal of the trial court to set aside the verdict of the jury because the same was contrary to the law and the evidence.

Viewing the evidence as upon a demurrer thereto, the facts and circumstances attending the injuries sustained by plaintiff's intestate were as follows: Where the accident occurred, the public road spoken of above was 37 feet wide from fence to fence, at the western or Boonesboro end, and 33 feet wide at the eastern or Lynchburg end, with drains on either side having a depth of about 18 inches below the middle of the road, and the machinery of the defendant was, by the authority and with the approval of the authorities of the county of Campbell and of the assistant state highway commissioner, placed in the road near the fence on the south side, leaving a space or passageway for the public 26 feet in...