McIntyre v. Orner
| Decision Date | 30 January 1906 |
| Docket Number | 20,610 |
| Citation | 76 N.E. 750,166 Ind. 57 |
| Parties | McIntyre v. Orner |
| Court | Indiana Supreme Court |
From Whitley Circuit Court; Joseph W. Adair, Judge.
Action by Susan Orner against William H. McIntyre. From a judgment on a verdict for plaintiff for $ 2,500, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.
Affirmed.
James E. Rose and Marshall, McNagny & Clugston, for appellant.
Charles F. Holler, Andrew A. Adams and Luke H. Wrigley, for appellee.
Appellee successfully prosecuted this action against appellant to recover damages for injuries claimed to have been received by appellant's negligence in driving an automobile on the public highway.
The action is based upon the following facts disclosed by the jury in answers to interrogatories: The plaintiff, being fifty-four years of age, and a resident of South Bend, about 3 o'clock p. m. on November 1, 1902, left the city of Auburn with the body of her deceased son to drive across the county to the town of Waterloo, there to take a train for home. The plaintiff and her son occupied the rear seat, and Mr. Ling and Mr. Mayfield, friends of her deceased son occupied the front seat, of a carriage, which, with team to draw it, had been procured at a livery-stable for the purpose, but without the knowledge and approval of the plaintiff. One of the horses was to some extent afraid of automobiles and the other was not. Ling, accustomed to driving and managing horses, drove the team without approval but without any expressed objection from the plaintiff. The road from Auburn to Waterloo runs in a northeasterly direction. On the journey the hearse preceded the carriage containing the plaintiff. Later in the same afternoon appellant, with three other gentlemen, left Auburn by the same road for Waterloo in a gasoline automobile belonging to appellant. The machine was two-seated, could speed twenty miles an hour, and exploded its gasoline in a chamber, which to some extent deadened the sound. Appellant drove and managed the machine. On the journey it was necessary for appellant to look ahead to avoid holes and obstructions in the road; but on the occasion of the plaintiff's accident appellant was operating his machine in an unusual and extraordinary manner, by going at a high rate of speed when meeting teams. On the way to Waterloo appellant drove his automobile past the carriage in which the plaintiff was riding, greatly frightened the horses, and caused them to crowd to the side of the road. Both appellee and appellant saw the fright of the horses. Appellant proceeded with his party to Waterloo, remained but a short time, and started to return to Auburn. A short distance from the former town he met the funeral party. The hearse was 500 feet ahead of the carriage. A. short distance before meeting the hearse, appellant drove his automobile to one side of the road and was about to stop when the driver of the hearse signaled him to come on. Appellant proceeded, and, having passed the hearse, he speeded his automobile towards the carriage at more than fifteen miles an hour, the machine puffing and making a great noise, and, when it approached within 200 feet of the carriage, the horses, in apparent fright, began crowding to one side of the road, and, when within fifteen or twenty feet of the plaintiff, whirled back into the road, and, in turning, the carriage cramped and broke a fore wheel, tipping the vehicle, and causing the plaintiff to be thrown out and injured. The driver held the lines firmly and taut, and an ordinarily cautious man could not have driven the team past the automobile, because it was approaching at a high rate of speed. The driver did not request nor signal appellant to stop the machine; but, when the horses whirled around, appellant threw off the power and applied the brake, and stopped the automobile when within fifteen or twenty feet of the plaintiff. The team manifested fright when the automobile was 200 feet away, seeing which an ordinarily prudent man would have anticipated that the further forward movement of the machine would likely cause injury to the occupants of the carriage. If appellant had run his machine at less speed, it would have made less noise. He operated it in a careless manner, because he speeded it too fast and too close to the team.
There are two paragraphs of complaint, both proceeding upon the theory that the plaintiff was injured by the negligence of appellant in continuing to run his automobile on the highway at an excessive speed, and in failing to stop, or slow up, when, as alleged in one paragraph, "he saw from the frightened condition of plaintiff's horses that to proceed further would result in injury to the plaintiff," and, in the other, by the exercise of reasonable care he might have known that fact. As relating to the question of negligence the complaint alleges: "That as said defendant approached said carriage with his said automobile, and when he was yet more than three hundred feet distant therefrom, the horses attached to said carriage drawing the plaintiff and her said companions became badly frightened at the approach of said automobile, the loud noise made by the propulsion thereof, and the operation of its said motor, the high and dangerous rate of speed--more than fifteen miles an hour--at which the same was approaching them, and the size and appearance of said vehicle, and plunged, reared, shied and exhibited all of the evidences of fear usually manifested by horses when greatly frightened, * * * and said defendant, well knowing said frightened condition of said horses, well knowing, also, that his said automobile, the approach thereof at said high and dangerous rate of speed, and the noise made thereby, were the cause of such fright, and well knowing that the nearer approach of his said automobile at said speed and under the circumstances aforesaid would greatly increase the fright of said horses, without exercising or using any care whatever, carelessly, recklessly and negligently propelled his said automobile at said high and dangerous rate of speed up to and until the same was within less than fifteen feet of said horses before the same was stopped or the speed thereof checked, * * * causing said horses to whirl around in said highway and run away to the south along the same, breaking one of the wheels of said carriage to which they were attached, and throwing the plaintiff with great violence out of said carriage upon the hard ground, whereby," etc. Is this a sufficient averment of negligence?
The employment of the automobile on the public highways, as a means of transportation, has been recognized in this State as a lawful use of the road , and if it results in injury to one traveling by another mode, the autoist can not be held liable for the injury, unless it is made to appear that he used the machine at a time, or in a manner, or under circumstances inconsistent with a proper regard for the rights of others. There is nothing dangerous in the use of an automobile when managed by an intelligent and prudent driver. Its guidance, its speed and its noise are all subject to quick and easy regulation, and under the control of a competent and considerate manager it is as harmless, or may soon become as harmless, on the road, as other vehicles in common use. It is the manner of driving an automobile on the highway, too often indulged in by thoughtless pleasure seekers and for the exploitation of a machine, that constitutes a menace to public safety. While it is the law that the owners of automobiles, subject to statutory restrictions, have equal right with the owners of other vehicles to occupy the highways, it must be borne in mind that this equality of right imposes the reciprocal duty of managing one's vehicle, whatever its character, with care and caution to avoid causing injury to others with equal rights. As we said in Indiana Springs Co. v. Brown, supra: "Each is required to regulate his own use by the observance of ordinary care and caution to avoid receiving injury, as well as inflicting injury upon the other." Within these principles it was incumbent upon appellant to take notice, because it is a matter of common knowledge that motor carriages are, as yet, usually strange objects to horses, and likely to startle them when driven up in front of them at a rapid rate. We assume, therefore, that defendant knew when he met the plaintiff's carriage on his return to Auburn, especially after the fright he observed in the horses as he passed them on the way to Waterloo, that his car, operated in the manner and at the speed described, was highly calculated to frighten the horses, and liable to cause them to injure the occupants of the carriage. With such knowledge it was appellant's duty to keep a lookout ahead, and as he approached the carriage note the effect of his onward movement upon the horses, and when he saw, or could have seen by the exercise of reasonable caution, that the horses were, under excitement, forcibly crowding off of the road, and manifesting unmistakable fright, ordinary care required him to slow up, stop his machine, or do whatever was reasonably required to relieve the persons in the carriage of their perilous situation.
In Shinkle v. McCullough (1903), 116 Ky. 960 77 S.W. 196, 105 Am. St. 249, it is said: "If * * * appellant knew, or could have known by the exercise of ordinary care, that the machine in his possession and under his control had so far excited appellee's horse as to render him dangerous and unmanageable, it was his duty to stop his automobile, and take such other steps for appellee's safety as...
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