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

• Decision Date: 28 February 1893
• Docket Number: 705
• Citation: 33 N.E. 451,7 Ind.App. 222
• Parties: THE LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY v. DAVIS
• Court: Indiana Appellate Court

33 N.E. 451

7 Ind.App. 222

THE LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY v. DAVIS

No. 705

Court of Appeals of Indiana

February 28, 1893

Petition for a rehearing overruled June 21, 1893.

From the Floyd Circuit Court.

Judgment affirmed.

E. C Field and W. S. Kinnan, for appellant.

C. L Jewett and H. E. Jewett, for appellee.

DAVIS, J. ROSS, J., concurs.

OPINION

DAVIS, J.

Omitting the caption and signature of counsel, the complaint in this case was as follows:

"Thomas H. Davis complains of the Louisville, New Albany and Chicago Railway Company, defendant, and for cause of action plaintiff says: At the time of the grievances hereinafter set forth, the defendant was a railway corporation engaged in operating a line of steam railroad from Main and Vincennes streets, in the city of New Albany, to Chicago, Illinois; that the track of said defendant's railway, in passing through the city of New Albany, was laid over and along and upon a certain public street and highway of said city known as Fifteenth street, and said track, in passing along said Fifteenth street, intersected and crossed a certain other public street and highway of said city, much traveled and used for the passage of horses and vehicles, called Spring street.

"At the time of said grievances, an ordinance of the said city of New Albany prohibited the running of any train of cars within the limits of said city at a higher rate of speed than five miles per hour. On the 20th day of April, 1891, the plaintiff was at a point on Spring street near its intersection with Fifteenth street, and about twenty feet from the said railway track of said defendant, with a horse, the property of the plaintiff, of the value of one hundred and thirty-five dollars, attached to a buggy, also the property of the plaintiff, of the value of one hundred and fifteen dollars, and while at said point, and in front of a drug store at the corner of said Fifteenth and Spring streets, in the transaction of some business, a passenger train of the defendant, drawn by a locomotive of defendant, which locomotive was in charge of an engineer and fireman, servants of the defendant, was run at a high and unlawful rate of speed, to wit, the speed of ten miles per hour, along said Fifteenth street, and across said Spring street; that the bell on said locomotive was not rung, nor was any other signal or warning given to indicate the approach of said train to said Spring street, or that it was about to cross the same; that when said locomotive was at a point nearly opposite where said plaintiff's horse and buggy were standing, and while said horse had become frightened at the sudden approach of said locomotive and train, without any signal or warning, and the plaintiff was holding said horse, and said servants of the defendant in charge of said locomotive, negligently, mischievously and willfully caused a large amount of steam to be let out of said locomotive and expelled therefrom, causing a loud and unusual noise, and one which was calculated to and did frighten the plaintiff's horse so that said horse became unmanageable and broke away from this plaintiff, totally destroying the buggy aforesaid and breaking said horse's leg and injuring said horse so that its value was entirely destroyed, and plaintiff was forced to kill it.

"The plaintiff says that said injury was caused without any fault or negligence on the part of the plaintiff, but solely because of the negligence and misconduct of the defendant and its servants, as hereinbefore set forth, to plaintiff's damage in the sum of two hundred and fifty dollars.

"Wherefore the plaintiff sues and demands judgment against the defendant for the sum of two hundred and fifty dollars."

The case was tried by a jury, and the following special verdict returned:

"First. We find that on the 20th day of April, 1891, the defendant was a railway corporation engaged in operating a line of steam railroad from Main and Vincennes streets, in the city of New Albany, to Chicago, Illinois.

"Second. That the track of said railroad passes through the city of New Albany, and was laid down and upon and operated over Fifteenth street, a public street of New Albany, and at the intersection of Fifteenth and Spring streets it intersected and crossed Spring street, in New Albany.

"Third. That said Spring street, where crossed by said railway, was on the 20th day of April, 1891, a public and frequented street of New Albany, one of the principal streets of said city, and constantly used as a street by pedestrians and persons in vehicles.

"Fourth. That on the 20th day of April, 1891, an ordinance of the city of New Albany prohibited the running of railway trains within the corporate limits of said city, at a greater speed than five miles per hour.

"Fifth. That the ordinance granting the defendant company the right to lay down its track upon Fifteenth street, and through the city of New Albany, required that a bell should be rung upon every locomotive while passing through said city, and that no train or locomotive should be run at a greater speed than five miles per hour.

"Sixth. That on the 20th day of April, 1891, the plaintiff, Thomas H. Davis, was the owner of a horse of the value of one hundred and thirty-five dollars, and also a buggy of the value of one hundred and fifteen dollars, and that said horse was a horse of ordinary gentleness, safe to drive along the streets of said city, and to leave standing in the street of said city when the said Thomas H. Davis was in sight and convenient reach of said horse, and not more than three or four steps away from him.

"Seventh. That on the 20th day of April, 1891, the plaintiff, with said horse hitched to said buggy, drove down Spring street and stopped in front of a drug store at the corner of Fifteenth and Spring streets and about thirty feet from the track of defendant's railway; that the plaintiff stopped said horse and left him standing hitched to said buggy, but not otherwise secured or hitched, in the gutter next to the curb and sidewalk, and immediately in front of the door of said drug store; that at the place where said horse was left standing, he had been frequently left standing before, and might have been safely left standing on said 20th day of April, 1891, if the defendant company had given notice of the approach of its train by ringing the bell upon said locomotive.

"Eighth. That while the plaintiff was standing at the door of said drug store, and had taken out his pocketbook for the purpose of paying a bill, the said horse became alarmed and frightened at the approach of a passenger train of the defendant company, running along its said track on Fifteenth street and about to cross Spring street.

"Ninth. That said train was on said day run along said Fifteenth street and across Spring street at a greater rate of speed than five miles per hour, and that no bell was rung upon the locomotive of said train, while approaching or crossing said Spring street; that, as said engine crossed over Spring street, the persons upon said locomotive suffered the steam to escape therefrom, from the lower part of said locomotive, with a hissing noise, which steam and noise were calculated to, and did, frighten plaintiff's horse and render him unmanageable.

"Tenth. That as soon as plaintiff's horse manifested alarm at the near approach of said train, the plaintiff went to said horse and took hold of him, before he had moved from the place where he was first left standing, and that the plaintiff attempted to hold said horse, and did hold to him until he had dragged the plaintiff about two squares, when said horse escaped from plaintiff, and ran into a telegraph pole and injured plaintiff's buggy to the amount of thirty-five dollars, and that said horse continued his flight and ran away, and ran into a shade tree on Spring street and so injured himself that he was rendered worthless and had to be killed.

"Eleventh. That on the said 20th day of April, 1891, the ordinance set out in the second paragraph of the defendant's answer was in force in the city of New Albany, and that the plaintiff, Thomas H. Davis, knew of the location of said railway, and the fact that the trains and locomotives frequently passed over said track, and that the train to Chicago left the city of New Albany about 8 o'clock in the morning.

"Twelfth. That said Thomas H. Davis had frequently stopped his said horse in front of said store, at the place where he stopped it on the 20th day of April, 1891, without injury or fright to said horse from the trains of said railway, and that while said horse was standing in said gutter on the 20th day of April, 1891, he was under the control of said Davis, and in such position that he could be easily reached and taken hold of by said Davis, and that the act of said Davis in leaving said horse so standing while he went to the door of the drug store was that of a reasonable and prudent man.

"Thirteenth. That if the servants of the defendant in charge of said locomotive had rung the bell while approaching and crossing Spring street, and had not run said train at a greater speed than five miles per hour, and had not, when crossing Spring street, suffered and permitted the steam to escape from the lower part of the locomotive, the injury to plaintiff's horse and buggy would not have occurred. But that said injury to said horse and buggy were the result of the failure to ring the bell and the act of the defendant in running said train at a greater speed than five miles per hour, and in permitting the steam to escape from the lower part of the locomotive, thereby frightening said horse and causing it to run away and injure itself and the buggy in the manner herein stated; that the engineer in charge...