Terre Haute Electric Railway Company v. Yant
| Decision Date | 02 November 1898 |
| Docket Number | 2,570 |
| Citation | 51 N.E. 732,21 Ind.App. 486 |
| Parties | TERRE HAUTE ELECTRIC RAILWAY COMPANY v. YANT |
| Court | Indiana Appellate Court |
Rehearing denied January 26, 1899.
From the Vigo Circuit Court.
Reversed.
J. G McNutt and F. A. McNutt, for appellant.
J. O Piety and S. R. Hamill, for appellee.
Appellee, who was plaintiff below, sued the Terre Haute Electric Railway Company to recover damages for a personal injury alleged to have been caused by the negligence of the appellant company. The complaint was in two paragraphs; the first charging negligence, the second wilful injury. The second paragraph was withdrawn. A demurrer for want of facts to the first paragraph was overruled, the cause put at issue by general denial, and verdict returned in favor of appellee for $ 905. A motion for a new trial on the grounds that the verdict was contrary to law, was not sustained by sufficient evidence, that the damages were excessive, and for alleged errors of the court in admitting and refusing to admit evidence, and in giving and refusing to give instructions, was overruled, and judgment rendered on the verdict. The first and second errors assigned question the sufficiency of the complaint; the third, the action of the court in overruling appellant's motion for a new trial.
The complaint charges that on the day of the alleged injury, defendant owned and operated a street railway line with double tracks running along a public street in the city of Terre Haute, and along the center of the National road east of said city; that on said day, while plaintiff and his wife were traveling in a one-horse buggy along said highway, and on the south side thereof, and going east, they met one of the defendant's electric street cars going west; that "the said horse saw and heard the said car traveling as aforesaid, and said horse did then and there become frightened at said fast-going car, and noise caused thereby, and began to plunge and start, and was becoming unmanageable; that thereupon this plaintiff jumped out of his said buggy, and took hold of the harness and bridle on and about the said horse's head, so that he would be more able to manage and control said horse, all of which was in plain view of defendant and defendant's agents who were controlling, operating, and running said car, and said servant ought to have seen, and did see, some time before the said car had come near said horse, the imperiled condition and position of the plaintiff caused by the fast-going car as aforesaid; that, notwithstanding, the plaintiff's dangerous and imperiled position and condition, caused as aforesaid, the defendant by its agent, wrongfully, carelessly, and negligently ran said car at a high rate of speed as aforesaid, towards, on, near to, and within but a few feet of this plaintiff and the said horse, which caused said horse to become entirely unmanageable, and to start, plunge, turn and to run, throwing this plaintiff down, and causing said horse to run over and trample on said plaintiff." It is not claimed by appellee's learned counsel that appellant was at fault in running its car and making the noise necessarily incident thereto, nor that it was run upon the occasion in question in an improper manner up to the point where it was alleged the horse was becoming unmanageable; but that, when the motorman saw that appellee's horse was frightened and becoming unmanageable, he should have stopped the car.
Booth on Street Railway Law, in section 298, states the law in the following language: ...
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