Rodgers v. The Baltimore and Ohio Southwestern Railway Company

• Decision Date: 23 February 1898
• Docket Number: 18,269
• Citation: 49 N.E. 453,150 Ind. 397
• Parties: Rodgers v. The Baltimore and Ohio Southwestern Railway Company
• Court: Indiana Supreme Court

49 N.E. 453

150 Ind. 397

Rodgers v. The Baltimore and Ohio Southwestern Railway Company

No. 18,269

Supreme Court of Indiana

February 23, 1898

Rehearing Denied May 10, 1898.

From the Clark Circuit Court.

Reversed.

Jonas G. Howard, for appellant.

Charles L. Jewett, Henry E. Jewett, Judson Harmon and E. N. Strong for appellee.

OPINION

Hackney, J.

This was an action by the appellant for damages resulting in his personal injury, and from the negligence of the appellee.

The lower court sustained the appellee's demurrer to the complaint, and that ruling alone is assigned as error. It was alleged that the Louisville and Jeffersonville Bridge Company had just completed its bridge across the Ohio river, between the cities of Louisville and Jeffersonville, together with the approaches or viaducts leading to such bridge; that said bridge had not been opened to the regular public traffic, and notice had been given that it would not be so opened until the first of September, of which fact appellant had knowledge; that on the 18th day of August a construction train, heavily laden, had made two or three trips across said bridge, the first train which had ever crossed the same; that on the 19th day of August, at a time when the appellant, who was a teamster, was driving his team along Market street, in the city of Jeffersonville, at or near the intersection of said street and the viaduct, at the north end of said bridge, and when he was about to pass under said viaduct, the appellee ran a locomotive and a passenger coach, at the speed of twenty miles an hour upon and over said viaduct, and from off said bridge to the said intersection of said Market street and the viaduct; that as said locomotive approached said intersection the appellee "carelessly, negligently, recklessly, and without any necessity whatever, caused the whistle of said locomotive to be blown," thereby frightening appellant's team, causing it to run away, and resulting in the injuries of which he complains.

It was further alleged that "said injuries * * * resulted solely from the negligent, careless, reckless, and unnecessary act of said defendant in blowing said whistle of said engine, and in having failed to notify the public that said train would cross said river, over said bridge, on said day, which were the sole and only causes of said injuries, and of said mules becoming frightened, and of their running away, and without any fault or negligence on behalf of said plaintiff."

It was alleged also that said intersection was in a populous part of said city, and was so obstructed by buildings and the viaduct that an approaching train from the south could not be seen by one approaching the intersection upon said Market street, and that he could not hear said locomotive and car until he reached the said intersection, and when they were so near the intersection that he could not avoid the meeting.

The complaint proceeds upon the theory of negligence, which is alleged to have consisted in the unnecessary act of blowing the whistle at the time and place. Counsel for the appellant expressly disclaims any other theory, or that the alleged negligence consisted in any other act or omission.

The sufficiency of the complaint is denied by the appellee upon the proposition that railway companies are not liable for injuries resulting from the frightening of horses occasioned by the noises necessarily incident to the proper operation of their lines.

This proposition is well supported by authority. Louisville, etc., R. W. Co. v. Schmidt, 134 Ind. 16, 33 N.E. 774; Ohio, etc., R. W. Co. v. Trowbridge, 126 Ind. 391, 26 N.E. 64; Baltimore, etc., R. W. Co. v. Thomas, 60 Ind. 107; Peru, etc., R. R. Co. v. Hasket, 10 Ind. 409, 71 Am. Dec. 335; Lamb v. Old Colony R. R. Co., 140 Mass. 79 2 N.E. 932; Norton v. Eastern R. R. Co., 113 Mass. 366; Whitney v. Maine Central R. R. Co., 69 Me. 208; Yingst v. Lebanon, etc., R. W. Co., 167 Pa. 438, 31 A. 687; Heininger v. Great Northern R. W. Co., 59 Minn. 458, 61 N.W. 558; Rorer on Railroads 704. The application of this proposition will be considered further along.

The use of the steam whistle is necessary in railroading as a warning of approaching trains, both to enable those approaching the tracks to avoid collision, and to save travelers upon the trains from the results of collision, as well as to protect the company from the destruction of its property. Its use is not only sanctioned by the legislation of this State, but, as a signal of approach to highways, is required. Its use is often proper when possible injury may result, as if in the case before us, a person had been walking upon the viaduct ahead of the train, at some point north of the crossing of Market street, and had been discovered by the engineer as the train reached Market street, and it was apparently necessary to warn him of the approaching train. The possible frightening of a horse properly in the vicinity, and the possible collision with the footman would present an instance where the signal could properly be made. The safety of the footman, of the train, and of those on board could not reasonably be hazarded for the chance of frightening a horse not known to be present. In such an instance the signal would certainly be a proper incident of the operations of the railway. Nor should the rights of signaling be made to depend upon the actual existence of a necessity for it, for the footman might be aware of the approach of...