The Citizens' Street Railway Company v. Lowe

• Citation: 39 N.E. 165,12 Ind.App. 47
• Decision Date: 11 December 1894
• Docket Number: 1,301
• Parties: THE CITIZENS' STREET RAILWAY COMPANY v. LOWE
• Court: Court of Appeals of Indiana

39 N.E. 165

12 Ind.App. 47

THE CITIZENS' STREET RAILWAY COMPANY v. LOWE

No. 1,301

Court of Appeals of Indiana

December 11, 1894

Petition for a rehearing overruled Feb. 19, 1895.

From the Hamilton Circuit Court.

Judgment affirmed.

W. H Latta, A. L. Mason, W. H. H. Miller, F. Winter and J. B Elam, for appellant.

J. M. Bailey, W. J. Beckett and W. S. Doan, for appellee.

OPINION

REINHARD, J.

This action was instituted by the appellee against the appellant, a street railway company in the city of Indianapolis, for the alleged negligent killing of appellee's son, eleven years old, who, at the time, was riding in an open vehicle, drawn by one horse, in company with two other persons, one of whom was the driver.

The court overruled a demurrer to the amended complaint, and this ruling constitutes the first error assigned and discussed.

It is averred, in the complaint, that the appellant owned and was operating a street railroad in the city of Indianapolis, Indiana, one division of which was operated and maintained upon Massachusetts avenue, extending northeast and southwest through the northern part of said city; that said avenue was, at the time of the performance of the negligent acts complained of, and for twenty years prior thereto, one of the most traveled thoroughfares for buggies, carriages and other conveyances and vehicles in said city; that horses and conveyances were constantly and continuously passing and repassing through said street or avenue; that appellant had constructed and maintained in said street, at said time, a double track, covering the entire center part of said street, the width or space occupied by said tracks being equal to or greater than the space between said tracks and the sidewalk along said avenue; that said double tracks extended from between and beyond Delaware street on the southwest and East street on the northeast, said last named street extending north and south through said city; that appellant had constructed its said double tracks or rails so that the inner flange or projection of the same was flat, and about three inches in width, said rails being especially convenient for the easy and comfortable passage of carriages, buggies and other conveyances, and prepared and constructed as aforesaid to facilitate travel thereon; that the distance between the rails on each track was about the width of an ordinary conveyance, and the general public had for about twenty years, in passing over and upon said avenue, driven their vehicles and conveyances upon the rails of said tracks with the knowledge, consent and permission of the appellant; that at the time mentioned, by reason of the condition of said avenue between said tracks and the sidewalks along said avenue, on either or both sides of said tracks and extending from and between said Delaware and East streets, said avenue was not in a condition to be used and was not used by the traveling public; that said avenue, between the last named streets, except the space occupied by the tracks, was torn up, rough and uneven, and unfit and dangerous for travel, and had been abandoned by the general public as a highway for the time being, owing to the excavations made therein by said city preparatory to improving the same; that said tracks of appellant were used by the traveling public in passing to and fro in buggies, carriages and other conveyances, from the central part of the city to the north and southeast part thereof, and were the sole and only driveway between said Delaware and East streets along said avenue, and that the public generally used said tracks continuously as a driveway, with the knowledge, consent and permission of the appellant; that the street known as New Jersey street extends north and south, and the street known as Michigan street extends east and west through said city, and meet and intersect each other at an angle of ninety degrees at a point one square west of where said East street meets and intersects said avenue; that at the crossing of New Jersey and Michigan streets, aforesaid, there was placed an obstruction or fence across said streets to prevent any person from driving on to said avenue from either side thereof, off either of the last above named streets; that said obstruction or fence had stood in the position and for the purpose aforesaid continuously and uninterruptedly for at least two weeks, and stood in said position and place at the time of the occurrence of the accident and injury hereinafter related, and that at that time the facts already recited were well known to the appellant.

Appellee further alleges that on the 20th day of July, 1892, his little son and servant Frank P. Lowe, a boy eleven years old, of bright mind and intelligence and of a strong and healthy constitution, without fault or negligence on the part of appellee, or said Frank's mother, or said Frank himself, and without fault or negligence on the part of those in whose care and custody he was left by the appellee, came upon said Massachusetts avenue at said East street, and without fault or negligence on the part of any of the above named persons, was riding in an open vehicle or conveyance drawn by a gentle and trusty horse, southwest on said avenue, and was upon the north track of appellant's said railroad approaching one of the appellant's cars, with due care and caution, upon the opposite or south track of said railroad, said car being drawn and propelled at the time with electricity, as a motor power, and said car was approaching appellee's said son Frank; that said Frank was approaching from the north east, the aforesaid crossing at the intersection of New Jersey and Michigan streets with said avenue, with due care and caution at the time appellant's said cars were approaching said crossing from the southwest; that appellant's said cars were then under the exclusive control and management of appellant's servants and employes, while approaching said crossing, as aforesaid, and when the injury to appellee's said son Frank occurred, as hereafter complained of, "and said cars were being negligently run and managed by said defendant's servant, and by reason of the negligent management of said defendant's car, as aforesaid, the horse attached to the vehicle in which the said Frank was riding became frightened and unmanageable as aforesaid, and was in plain view of said car, and said defendant could see and observe the condition of said horse and the peril of said Frank for a long distance from said car and in front of the same, to wit: Three hundred (300) feet, and while the said horse was in the frightened and unmanageable condition, as aforesaid, defendants did negligently approach said horse, thereby so frightening said horse that it turned to the left and across the track upon which said car was negligently approaching, and defendant negligently ran said car against the wagon in which said Frank was riding," etc.

The remaining portion of the complaint relates to the injury inflicted and the damages sustained.

Assuming as we must from the averments of the complaint, that the conveyance in which the appellee's decedent and son was riding was properly on the north track of the appellant's road, the question is whether the complaint charges any act of negligence on the part of the appellant or its servants. It is not shown in the complaint that the horse and vehicle were, at the time the horse became frightened, across the track in front of appellant's car. The mere fact...