The Louisville, New Albany and Chicago Railroad Company v. Schmidt

• Decision Date: 23 February 1897
• Docket Number: 17,351
• Citation: 46 N.E. 344,147 Ind. 638
• Parties: The Louisville, New Albany and Chicago Railroad Company v. Schmidt, by Next Friend
• Court: Indiana Supreme Court

46 N.E. 344

147 Ind. 638

The Louisville, New Albany and Chicago Railroad Company v. Schmidt, by Next Friend

No. 17,351

Supreme Court of Indiana

February 23, 1897

Rehearing Denied May 18, 1897.

From the Hendricks Circuit Court.

Affirmed.

E. C Field, W. S. Kinnan and Brill & Harvey, for appellant.

George W. Spahr and Lewis C. Walker, for appellee.

OPINION

Jordan, C. J.

This is an action by the appellee to recover damages for the alleged negligence of appellant, which resulted in her sustaining serious personal injuries. There was a special verdict, and upon the facts found the trial court awarded appellee a judgment. On July 5, 1890, the time of the accident appellee, who was about seventeen years of age, accompanied by her brother, who was fifteen years old, and also by another boy of the age of fourteen years, was riding in a light spring wagon, taking flowers to market in the city of Indianapolis. At a point on East street, a public street in said city, where appellant's railroad track crosses said street, the horse attached to the wagon became frightened and ran away by reason of appellant's alleged negligence in permitting and suffering the steam in one of its engines standing near the crossing to escape with a loud and unusual noise.

This is the second appeal of this cause by appellant. See 134 Ind. 16. It was held, in the former appeal, that, under the issues as then formed, the evidence did not support the verdict of the jury, and the judgment was reversed. After the cause was certified back to the lower court, the issues were reformed and two additional paragraphs to the complaint were filed. It is clearly disclosed that the special verdict rests upon the second paragraph of the complaint, and for this reason alone appellant cannot predicate available error upon the action of the court in adjudging, upon demurrer, the first and third paragraphs sufficient. It is substantially alleged in the second paragraph that appellant's railroad runs through the city of Indianapolis, Indiana, and crosses East street, a public street and highway in said city, and that this crossing is much used at all hours of the day and night by persons riding in carriages, wagons, and other vehicles, all of which was well known to appellant at the time of the accident; that on July 5, 1890, the appellant carelessly and negligently ran and moved one of its locomotive engines, with two freight cars attached thereto, and stopped the same near to said crossing and highway for the purpose of remaining there a long and unreasonable length of time, and carelessly and negligently permitted the same to remain at said point for an unreasonable period of time, where the hissing noises, smoke and confusion made by escaping steam were liable to frighten horses drawing vehicles along said East street and over said crossing; that at the time said engine was stopped at the said crossing it "had on" an excessive amount of steam that was not necessary for its work, and that the carrying of such a high pressure of steam at such a time and place, under the circumstances, was negligence upon the part of the defendant; that when the defendant so negligently moved said locomotive near to said crossing and stopped at said point, the steam gauge indicated that the steam in the boiler was liable to escape through the automatic safety valve at any moment and make a loud hissing and unusual noise, unless regulated and controlled, as the defendant at the time knew, and was thereby liable to frighten horses drawing vehicles along said street and over said crossing, thereby causing them to become unmanageable, and run away, as the defendant well knew; that while the said engine, with said cars attached, was standing near to said crossing, as aforesaid, the plaintiff, Anna Schmidt, was driving along and upon said street in a spring wagon, drawn by a quiet and gentle pony or horse, that with her in said wagon were her brother, Joseph Schmidt, and one Eddie Halley; that as she approached said crossing for the purpose of crossing the same, she sent said Halley to the servants in charge of said engine to ascertain if it was safe for her to drive over the crossing and railroad track at that time; that the servants in charge of said engine, and the flagman of defendant at said crossing, with the full knowledge of the danger of the steam escaping from said engine, as aforesaid charged, informed the plaintiff that it was safe for her to cross, and signaled and invited her to cross, and she, believing from said information and invitation, that it was safe to cross, and that no harm would result, started to drive over said crossing, and while driving over the same she was compelled to drive near to said engine, for the reason that it was negligently stationed near to the crossing; that while in the act of driving over the crossing and when near to said engine the defendant, without any notice or warning, carelessly and negligently suffered and allowed the steam to escape from the boiler of the engine, thereby making a very loud blowing, hissing, and unusual noise, which escape the defendant could have avoided by the exercise of reasonable care. It is further averred that the escape of the steam as alleged so frightened plaintiff's horse that it became unmanageable and ran away and upset the wagon in which she was riding, and that she was thrown out and severely injured, etc.

Appellant makes no specific charge of insufficiency against this paragraph, and we are of the opinion that it contains sufficient facts to constitute a cause of actionable negligence. Appellant's counsel in the main contend that the special verdict does not respond to or support the issue as made by the second paragraph of the complaint, that the verdict does not support the judgment, and that the former is not sustained by the evidence. The facts found by the jury bearing upon the question of the alleged negligence in the second paragraph appear to be as follows: The line of the defendant's railroad crosses East street, one of the public streets in the city of Indianapolis, Indiana, in the populous part of the city; that said East street at said crossing was on July 5, 1890, much used by the public in crossing with wagons, carriages and other vehicles; "that on the morning of the 5th day of July, 1890, the defendant by its agents and employes, took one of the engines from the building where it kept its engines, designated as a round house, a distance of a few hundred feet from said East street crossing, and backed said engine down to and across said East street to a point about twenty-five or thirty feet west of the west line of said crossing; that at the time the said engine was brought down from said round house to said crossing, said engine carried from 130 to 140 pounds of steam; that at the time said engine came to and passed said crossing, two cars and a caboose, standing on defendant's switches, west of said crossing, were attached to said locomotive; that after said cars were so attached to said engine, said engine and cars were moved up to within twenty-five or thirty feet of the west line of said East street crossing, to await orders to go to the yards of the defendant, two or three miles distant, to make up a freight train there to go to Monon, in the northern portion of the State of Indiana."

"Fourth. That at the time that said engine came to said East street crossing, from said round house, it carried an unnecessary and excessive amount of steam for the work it was intended said engine to do, and did do at that time; that eighty pounds of steam would have been amply sufficient for the work which said engine did and was intended to do at that time.

"Fifth. Said engine at said time had on it as a part of its appliances, a steam gauge, which indicated the amount of steam pressure in the boiler of said engine; that said steam gauge had on it a dial of about six inches in diameter, with figures on the outer rim thereof, and a hand to indicate the amount of steam pressure, and that the amount of steam pressure could be easily seen at a distance of seven feet.

"Sixth. That said engine also had upon it an automatic safety valve a device in general use for the purpose of permitting the escape of steam automatically when the pressure of steam reached a given point; that the automatic safety valve of said engine was so adjusted that the steam would escape automatically when the pressure of steam reached 140 pounds, and when said steam gauge indicated a pressure of 140 pounds the steam would escape through the automatic safety valve, and make a loud, blowing and hissing noise; that said device was made and adjusted by the manufacturer of the engine, sealed up, and could not be adjusted or changed by anyone in charge of the engine. And whenever the steam was permitted to reach a pressure of 140 pounds no one controlling the engine could prevent the escape of the steam, or the noise consequent therefrom; that said automatic safety valve and the steam gauge were of the most modern and approved appliances, and were in general use and were used for the purpose of avoiding the danger incident to a too high steam pressure.

"Seventh. That the engineer in charge of said engine looked at the steam gauge at the roundhouse and saw and knew that it indicated a steam pressure of from 130 to 140 pounds; and that he also saw the steam gauge at the East street crossing and knew that the steam pressure was increasing and was now 140 pounds, and that the steam was liable to escape through the safety valve at any moment.

"Eighth. That the steam pressure on said engine at said time could have been controlled by the persons in charge thereof, and the increase of such pressure prevented, either by regulating the...