The Indianapolis Union Railway Co. v. Boettcher
| Decision Date | 15 October 1891 |
| Docket Number | 14,489 |
| Citation | 28 N.E. 551,131 Ind. 82 |
| Parties | The Indianapolis Union Railway Company v. Boettcher |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled March 15, 1892.
From the Marion Superior Court.
Judgment affirmed, with costs.
F Winter, A. Baker and E. Daniels, for appellant.
W. W Woollen, for appellee.
This action was brought by the appellee against the appellant for damages alleged to have been sustained on account of the negligence of the agents and servants of the appellant.
Numerous errors are assigned and discussed. The first alleged error discussed is the overruling of appellant's demurrer to the first paragraph of the appellee's complaint.
Omitting the formal allegations of the complaint, it alleges: "That, on the 30th day of November, 1885, he, the said plaintiff, was then passing on and upon a certain public street and highway which intersects said Hadley avenue at or near the point where said Belt Railroad crosses the said avenue, and which street and highway runs in a southwesterly direction to said stock yards, and parallel with said switch and side-tracks; that at said time he was using all diligence on his part to manage his horse well and avoid any accident, and was not guilty of any negligence whatever; that the horse which he was riding was gentle and docile; that at said time the defendant, by its agents, had and was in possession, control, and had the management of a certain locomotive engine which was upon said switch and side-track; that said defendant, by its agents and servants, well knowing that the plaintiff was passing upon said street and highway, and not regarding its duty in that respect, so carelessly and negligently ran and managed the said locomotive engine as to cause and suffer it, by blowing its whistle, the blowing off of its steam, and suffering its steam to escape from it, to make loud and unusual noises, and thus frighten the horse which the plaintiff was riding, and causing him to become unmanageable, and to thus throw this plaintiff from off his back to the ground, and thereby breaking plaintiff's leg and bruising his body in divers places."
It is contended that the paragraph of complaint does not allege any acts of negligence for which appellant is liable to respond in damages; that the appellant, upon its own grounds, has the lawful right to sound its whistle and to blow off its steam, and suffer its steam to escape, and that such acts are not per se negligent, and that these are the acts with which the appellant is charged with the commission of, and that no facts are alleged which would make the doing of such acts unlawful or the commission of them a nuisance.
Counsel for appellant are led into an error by the interpretation placed upon the language of the complaint. It is true, no doubt, that the blowing of the whistle and necessarily allowing steam to escape in the ordinary and usual way are lawful acts, and unless some peculiar facts or special circumstances are alleged making such acts specially dangerous and hazardous to others, which facts and circumstances are known to the employees operating the engine, whereby it would become their duty to refrain from sounding the whistle or allowing the steam to escape at the particular time and place, the company would not be liable for such acts; but a liability would no doubt attach to the wantonly and purposely blowing off of steam and blowing of the whistle at a time when such acts would in all probability cause an injury to others.
This paragraph charges that the appellee was on the street or highway in close proximity to the engine; that this fact was known to the employees operating the engine; "that they carelessly and negligently ran and managed said locomotive engine as to cause and suffer it, by blowing of its whistle, the blowing off of its steam, and suffering its steam to escape from it to make loud and unusual noises."
It does not charge the blowing of the whistle or letting off of steam in the usual and ordinary way, but doing it in such a way and manner as to make "loud and unusual noises," and that it was such loud and unusual noises that frightened the horse; that the horse was gentle and docile, and the appellee was using all diligence to manage him, but that by careless and negligent management of the engine by blowing the whistle and blowing off the steam, and suffering the steam to escape in such a way as to make a loud and unusual noise, it frightened the appellee's horse and caused the injury.
The ordinary use of the engine, and the ordinary sounding of the whistle and escape of steam, is not negligence. What appellee complains of is the negligent and careless use of the engine, in disregard of the duty, in sounding its whistle and blowing off its steam in such a way as to cause it to make not the usual noise, but an unusual noise. The ordinary sounding of the whistle and allowing steam to escape is not negligence, and such use of the engine is not complained of, but the negligent use of the engine.
This paragraph of complaint is clearly sufficient to withstand a demurrer. Billman v. Indianapolis, etc., R. R. Co., 76 Ind. 166; Cincinnati, etc., R. W. Co. v. Gaines, 104 Ind. 526, 4 N.E. 34; Culp v. Atchison, etc., R. R. Co., 17 Kan. 475; Favor v. Boston, etc., R. R. Co., 114 Mass. 350.
The next alleged error is the overruling of the demurrer to the second paragraph of the complaint.
This paragraph was intended to charge, and we think it does charge, a wilful injury. It charges "that the said defendant, by its agents and servants, well knowing that the plaintiff was passing along said street and highway, and not regarding its duty in that respect, but intending to injure the plaintiff, and do that which would result in his injury, so purposely, wilfully and recklessly ran and managed its locomotive engine which was upon said switch and side-track, as to cause it, by the blowing of its whistle and the blowing off of its steam, to make loud and unusual noises, and thus to frighten the horse," etc.
This paragraph alleges that the agents and servants of appellant intending to injure the plaintiff, purposely, wilfully and recklessly ran and managed the locomotive as to cause it, by, etc., to make loud and unusual noises, and thus to frighten the horse, etc. This charges the wilful and purposely...
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