The Louisville, New Albany And Chicago Railway Company v. Schmidt

• Decision Date: 17 March 1893
• Docket Number: 16,182
• Citation: 33 N.E. 774,134 Ind. 16
• Parties: The Louisville, New Albany and Chicago Railway Company v. Schmidt, by Next Friend
• Court: Indiana Supreme Court

33 N.E. 774

134 Ind. 16

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

No. 16,182

Supreme Court of Indiana

March 17, 1893

From the Hendricks Circuit Court.

The judgment is reversed, with instructions to the circuit court to grant a new trial.

E. C Field, C. C. Matson, W. S. Kinnan, J. R. Brill and L. M Harvey, for appellant.

G. W Spahr, for appellee.

OPINION

Hackney, J.

The appellee, sixteen years of age, approached the crossing of appellant's railway tracks on East street, in the city of Indianapolis, driving a horse hitched to a spring wagon; she was accompanied by two boys, each fifteen years of age, and before going upon the tracks, she alleges she observed an engine of the appellant's standing on the track near the street crossing, in charge of an engineer and fireman; that she stopped and required one of the boys to go upon the tracks to learn of the crossing of trains, and the safety in pursuing her way across the tracks; "that the flagman at the crossing, and the engineer in charge of said engine and the defendant, each and every one, told her that it was safe and all right for her to drive across said tracks, and that they signaled her, and told her to drive on across. She says that being so told, signaled, and advised by said defendant and by the flagman, she started to drive across said tracks, on said East street, and that when she came to a point on said crossing opposite and near to where said engine was standing, the said defendant, without warning and without notice, suddenly and in a very loud, violent, explosive, and negligent manner, blew off the steam from the boiler of said engine, and carelessly, negligently, and wrongfully suffered the steam to blow off and escape from the boiler of said engine in a sudden, loud, and violent manner, thereby making a very loud, hissing, whistling, screeching, and blowing noise which frightened plaintiff's horse, causing said horse to run away, upsetting said wagon and throwing plaintiff upon the ground," causing the injuries complained of, and all without contributory negligence on her part.

To the complaint alleging the foregoing facts, the appellant's demurrer was overruled, and an exception reserved. Upon an answer in general denial, the cause was submitted to a jury, and resulted in a finding for appellee in the sum of four thousand dollars. With the general verdict, there was returned answers to interrogatories.

By the assignment of error, the appellant questions the sufficiency of the complaint, the overruling of the motion for judgment on the answers of the jury to special interrogatories, and the overruling of the motion for a new trial.

The alleged actionable negligence of the appellant is, under the circumstances, the affirmative act of blowing off steam suddenly and in a loud, violent, and negligent manner, and negatively in suffering the steam to blow off suddenly and in a loud, violent, and negligent manner.

From the special interrogatories and the answers of the jury thereto, we find, that the steam escaped only from an automatic safety valve; that said valve was a safe and necessary device on the engine; that it was properly constructed and in good repair, was such as was then generally used on the best engines, and that the discharge of steam therefrom was necessarily incident to the use and the safety of the engine of the appellant. The following are two of the special interrogatories and the answers of the jury thereto:

"5. Did either the engineer or fireman of defendant cause any whistle to be sounded, or blow off steam from the engine in question, at the time of the accident complained of? Answer. Yes.

"12. Had the engineer any control of the automatic safety valve; if so, what? Answer. By regulating his fire and injecting cold water, he could have controlled it."

The first of the two interrogatories quoted, and the answer thereto, show the finding by the jury of an affirmative act by the engineer or fireman in blowing off the steam. It is true that the interrogatory is subject to criticism, in that it inquires alternatively as to the sounding of the whistle or blowing off the steam. But, presuming in favor of the general verdict, as we must, and remembering that there was no issue as to the sounding, or failure to sound, the whistle, we construe the answer to have related to the inquiry as to blowing off the steam.

The second of the interrogatories quoted, and the answer thereto, find that the engineer, by regulating his fire and by the use of cold water, could have controlled the automatic valve from which the steam escaped, thereby finding, when considered in connection with the other findings which we have summarized, an omission to do that which if done the steam would not have escaped.

The appellant's contention is that the special interrogatories and the answers thereto are inconsistent with the general verdict. To our satisfaction, we have shown that they are not. Unless they are so inconsistent as to override the general verdict, and stand in irreconcilable conflict with it, the motion for judgment was properly overruled. Louisville, etc., R. W. Co. v. Stommel, 126 Ind. 35, 25 N.E. 863; Ohio, etc., R. W. Co. v. Trowbridge, 126 Ind. 391, 26 N.E. 64; Barnes v. Turner, 129 Ind. 110, 28 N.E. 322.

The answer to the fifth interrogatory is a finding of the first charge of negligence, and supports the general verdict instead of contradicting it.

It is urged by the appellant that of the two charges of negligence there is no evidence, and that for this reason the court below erred in overruling the motion for a new trial.

Upon the element of affirmative negligence, as alleged in the complaint, we have been unable to find any evidence in support thereof, and the only evidence which the appellee insists is in support thereof is from the testimony of the boy Halley, as follows:

"Ques. 30. Whereabouts from the engine did it blow off? Ans. Right there at the top of the whistle."

We are unable to perceive that this evidence tended to establish any voluntary action on the part of any one connected with the engine. No other testimony is found in the record from which such tendency can be determined.

Upon the element of negligence alleged to consist in permitting the steam to escape, we do not find the question so free from embarrassment. The appellee insists that the evidence shows that the steam pressure which caused the safety valve to raise and permit steam to escape could have been avoided by the engineer in drawing the fire from his engine, or in injecting cold water into the boiler, or by turning the steam into the water-tank. The only evidence of the use of such methods for the reduction of the pressure of steam is from two expert witnesses introduced by the appellant, and each testified to the impracticability of adopting any one of such methods; that to drive the steam into the tank through the injector so affects the injector that it will not perform its office properly in feeding. The method of reducing pressure by injecting cold water into the boiler, was shown to be impracticable when there were over three gauges of water in the boiler, a condition rarely existing when starting out on a trip, and a condition not shown...