The Island Coal Co. v. Clemmitt

• Decision Date: 07 January 1897
• Docket Number: 2,346
• Citation: 49 N.E. 38,19 Ind.App. 21
• Parties: THE ISLAND COAL COMPANY v. CLEMMITT, BY NEXT FRIEND
• Court: Indiana Appellate Court

49 N.E. 38

19 Ind.App. 21

THE ISLAND COAL COMPANY v. CLEMMITT, BY NEXT FRIEND

No. 2,346

Court of Appeals of Indiana

January 7, 1897

From the Greene Circuit Court.

Affirmed.

Chambers Pickens & Moores and Cavins & Cavins, for appellant.

William L. Slinkard, for appellee.

OPINION

BLACK J.

The appellee's complaint, upon demurrer, was held sufficient. It showed that the appellee was a minor suing by next friend; that the appellant was a corporation doing business in the mining and getting out of coal at a certain shaft; that at this shaft "a large amount of slack, dirt, small coal, and other refuse is brought to the top of the ground and piled up by said defendant; that a public highway runs near said shaft; that said defendant hoisted said slack, dirt, small coal, and refuse and threw and piled the same negligently and carelessly from said shaft to and along and into said public highway, making a high, black, and frightful object along and into said highway, which was calculated to and likely to frighten horses driven by persons along and over said highway; that the nature of said slack, coal, dirt, and refuse is to take fire and burn at and near the bottom and along the sides, and, after so burning, large portions slide and come down the sides, raising a fearful smoke, and making a peculiar and frightful noise, all of which, at the time hereinafter mentioned, was known to the defendant, and by which said object was made more hideous and frightful to persons passing and repassing with horses driving along said highway; that on the 29th day of October, 1895, said plaintiff was driving along and over said highway with a quiet and gentle horse hitched to a cart, and driving in a careful and prudent manner on said highway at and along by the point where defendant had so carelessly and negligently placed said object, when a large amount of said black and fiery slack, coal, dirt, and refuse, by reason of said burning, came rushing down the side thereof towards plaintiff, causing a terrible smoke, a rushing, frightful noise, enveloping plaintiff and his horse so driving in ashes and smoke, frightening said horse beyond plaintiff's control, and causing said horse to run away, and without any fault or negligence on the part of this plaintiff, but wholly through the carelessness and negligence of the defendant aforesaid, said horse, by reason of said fright, ran away, throwing plaintiff out of his said cart," etc.

In argument on behalf of the appellant it is claimed that there is a want of connection between the act of the appellant alleged to have been negligent and the alleged cause of the fright of the horse; that the negligence attributed to the appellant was averred to have been in the placing of the pile of material, while the cause of the horse's fright was the burning and falling of the material; and that, therefore, the alleged injury is not traceable to the appellant's negligence as a proximate cause.

A complaint should contain a statement of the facts constituting the cause of action, so plainly and concisely worded that what is intended may be known from what is said in the pleading. See section 341, Burns' R. S. 1894 (338, Horner's R. S. 1897).

In pleading negligence, it is sufficient to allege it generally without stating the facts constituting the negligence, but it must be made to appear that the damage complained of was the result of a negligent act or omission. It is not sufficient to show that there was negligence in some particular act or omission without showing that the damage was caused by negligence shown. See Jeffersonville, etc., R. R. Co. v. Dunlap, 29 Ind. 426; Cincinnati, etc., R. R. Co. v. Chester, 57 Ind. 297. The plaintiff's injury...