Pitcairn v. Whiteside

• Decision Date: 23 June 1941
• Docket Number: 16623.
• Citation: 34 N.E.2d 943,109 Ind.App. 693
• Parties: PITCAIRN et al. v. WHITESIDE.
• Court: Indiana Appellate Court

34 N.E.2d 943

109 Ind.App. 693

PITCAIRN et al. v. WHITESIDE.

No. 16623.

Appellate Court of Indiana, in Banc.

June 23, 1941

[Copyrighted Material Omitted]

F E. Zollars and R. S. Teeple, both of Fort Wayne, for appellants.

Barrett Barrett & McNagny, L. L. Hunt, Mentor Kraus, and J. A. Bruggeman, all of Fort Wayne, for appellee.

BEDWELL Judge.

On October 16, 1937, at about the hour of 1:45 p.m., appellee was injured while operating an automobile in a westerly direction upon United States Highway No.24, between the cities of Peru and Wabash and near a point where United States Highway No. 24 intersects with Indiana State Highway No. 115. His injuries occurred when the automobile he was operating was struck in the rear by an automobile operated by one Catherine Hively who was traveling in the same direction on the same highway. Near the scene of the accident the appellants operated a railroad, the tracks of which paralleled United States Highway No. 24 between the cities of Peru and Wabash.

It appears from allegations in appellee's complaint that the defendants, by their servants and agents, started a fire on the right of way of the railroad operated by them, and caused and permitted smoke to gather upon, collect and roll over such highway; that said smoke was heavy and dense and obscured and obstructed the view and vision of travelers lawfully on the public highway; that when appellee came upon such cloud of smoke it was necessary for him to proceed through the same to reach his destination, the city of Peru; that while proceeding through such smoke, on his own side of the road, in a careful and prudent manner, his automobile was struck in the rear by another automobile, and as a result of this collision he was injured.

Appellants were charged with negligence in the following particulars:

"(1) In so burning off its said right-of-way as to cause a heavy and dense cloud of smoke to collect on and hang over a public highway, thereby obscuring and obstructing the view and vision of travelers lawfully on said highway to their great peril and danger.

"(2) In permitting the fire started by it on its right-of-way to escape from said right-of-way and on to and upon adjacent lands and fields, thereby causing a heavy and dense cloud of smoke to roll across and upon a public highway, to the great danger and peril of persons lawfully on said highway.

"(3) In creating a hazard to the traveling public upon a highway, by causing a fire to burn adjacent to said highway under such circumstances as to permit heavy clouds of smoke to blow or roll across said highway in such quantities and so close to the surface of the highway as to interfere with the visibility of travelers thereon.

"(4) In failing to take any precautions to protect the traveling public on said highway when the defendants knew or by the exercise of reasonable care should have known that they had caused a dark cloud of smoke to collect over a heavily traveled highway, all at a time when they had available agents and servants to regulate traffic or to take other reasonable precautions to protect the public."

There was a trial by jury which returned a verdict against appellants and for appellee in the sum of $15,000. The assigned error is the overruling of appellants' motion for a new trial. Appellants are relying upon the insufficiency of the evidence to sustain the verdict, and the refusal of the trial court to give to the jury each of appellants' requested Instructions Nos. 31, 32, 33 and 34.

There is evidence in the record to sustain the following facts: That at the time of his injury appellee was traveling in a westerly direction on United States Highway No. 24 at a speed of 3 or 4 miles an hour; that the highway was paved for uniform width of 18 feet; that the right of way of the Wabash Railway was about 160 feet south of the highway at the place where the collision occurred, and ran parallel with it in a general easterly and westerly direction; that a fire had been started on appellants' right of way between 8 and 9 o'clock a.m., while a gang of colored workmen, employed by appellants, were putting in rails; that there were one hundred ten men in this gang, exclusive of the foreman and assistant foreman; that the weather was cold and the wind was blowing from the tracks to the highway; that between 10 and 11 o'clock a.m. the fire was burning all up and down the right of way, and at noon there was a lot of smoke coming across the highway, and that the smoke kept getting heavier from the middle of the forenoon on; that the fire spread out toward the highway in a fan shape with a small part of the fan next to the railroad tracks; that the accident happened between 1:30 and 2 o'clock p.m., and at the time of the accident no one was flagging traffic on the highway at either end of the smoke cloud; that the highway was a heavily traveled paved highway; that after the accident in which appellee was injured, the fire was put out. That on the day of the accident appellee had left the town of Wabash to go to Peru; that he was traveling west and had driven about a mile when he encountered the very dense smoke; that he slowed down to nearly a stop and proceeded on through the smoke, and that he was traveling through the smoke when the car operated by Catherine Hively, and traveling in the same direction, hit the back of his car; that he was traveling on the north half of the highway at the time of the collision; that at the time he started into the smoke there was nothing behind him; that when he got into the smoke cloud and at the time of the accident, the smoke was very dense and extended clear across the road, but when he came up to the smoke cloud he did not know how far it extended to the west; that he was about 150 to 200 feet from the smoke when he slowed his car down and then he could not see the highway beyond the smoke, but when he slowed down he shifted the gears of his automobile, and when he entered the smoke he turned on the dimmers of his headlights; that when he shifted gears he had almost stopped; that he did not come to a complete stop at any time before he entered the smoke.

Appellants' first contention is that the evidence is insufficient to show actionable negligence, and that the smoke over the highway was a mere condition, the creation of which was not negligence.

The occupier of land abutting on or adjacent to, or in close proximity of, a public highway, owes a duty to the traveling public to exercise reasonable care to prevent injury to travelers upon the highway from any unreasonable risks created by such occupier, which he had suffered to continue after he knew, or should have known, of their existence, in cases where such occupier could have taken reasonable precautions to avoid harm to such travelers. The traveling public is entitled to make free use of highways and streets, and an occupier of land, which is adjacent to or in close proximity of such highway or street, has no right to so use the property occupied by him as to interrupt or interfere with the exercise of such right by creating or maintaining a condition that is unnecessarily dangerous.

In the case of Ft. Wayne Cooperage Co. v. Page, 170 Ind. 585, on page 589, 84 N.E. 145, on page 146, 23 L.R.A.,N.S., 946, the Supreme Court of this state says: "One may not always conduct a lawful business on his own premises as he pleases. The law requires that every one in the use and enjoyment of his property shall have regard for the rights of others, and will not allow him to set up or prosecute a business on his own land in a way that is calculated to, or in fact does, materially or injuriously affect the rights of adjoining owners, or that substantially or harmfully interferes with or injures those rightfully traveling on an adjoining highway. Wright v. Compton [1876], 53 Ind. 337; Island Coal Co. v. Clemmitt [1897], 19 Ind.App. 21, 49 N.E. 38."

In the case of Rock Oil Company et al. v. Brumbaugh, 59 Ind.App. 640, on page 651, 108 N.E. 260, on page 264, this court says: "One is entitled to the reasonable use of his property even if such use incidentally injures the property of his neighbor, but liability for an injury arises when it is caused by such [unreasonable] use of one's property as might reasonably have been anticipated to result in damage to the person or property of others in the vicinity. Both our courts of last resort have approved the rule declared in the case of Fletcher v. Rylands (1866) L.R. 1 Exchequer, 265, 278, to the effect that the person who for his own purposes brings on his lands and collects and keeps there anything likely to cause injury and damages to the property of others if it escapes must keep it at his peril, and, if he fails to do so, is prima facie answerable for all the damage which is the natural consequence of its escape."

There was a duty upon appellants to refrain from the creation or maintenance of any condition upon their right of way which subjected the traveling public, using public highways in the vicinity of such right of way, to unreasonable risks or conditions that were unnecessarily dangerous. A violation of this duty would constitute negligence. The evidence was sufficient to entitle the jury to determine whether or not appellants were guilty of negligence.

The next contention of appellants is that the sole proximate cause of the injuries to appellee was the negligence of the driver of the car which struck the car of appellee.

In the case of Swanson v. Slagal, Adm'r'x, 212 Ind 394, 8 N.E.2d 993, 998, the court quotes with approval the following definition of proximate cause: "'Proximate cause' is that act that immediately causes or fails to prevent an injury that might reasonably have been anticipated would result from the...