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

• Decision Date: 27 October 1892
• Docket Number: 587
• Citation: The Louisville, New Albany And Chicago Railway Company v. Stanger, 32 N.E. 209, 7 Ind.App. 179 (Ind. App. 1892)
• Parties: THE LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY v. STANGER
• Court: Indiana Appellate Court

32 N.E. 209

7 Ind.App. 179

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

No. 587

Court of Appeals of Indiana

October 27, 1892

Reported at: 7 Ind.App. 179 at 191.

From the Monroe Circuit Court.

Judgment affirmed.

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

J. R East and W. H. East, for appellee.

OPINION

FOX, J.

The complaint in this case was in two paragraphs. A demurrer was filed to each paragraph, and overruled. A general denial was then filed, and, upon the issue thus joined, the case was tried by a jury. Upon a proper motion made, a special verdict was returned. Upon the facts thus found, the court gave judgment in favor of the appellee.

At the proper time the appellant filed a motion for a venire de novo, also a motion for a judgment in his favor upon the special verdict. Both these motions were overruled by the court. A motion for a new trial was also filed and overruled.

Proper exceptions to the ruling of the court upon these motions were taken and the case was appealed to this court.

The appellant assigns the following errors in the record:

1. The court erred in overruling appellant's motion for judgment in its favor upon the special verdict of the jury.

2. The court erred in overruling appellant's motion for a venire de novo.

3. The court erred in overruling appellant's motion for a new trial.

4. The court erred in overruling appellant's demurrer to the first and second paragraphs of the complaint.

The action was brought for the recovery of damages for personal injuries which the appellee alleged he received by reason of the negligence of appellant's servants.

Appellant's counsel waive the fourth assignment of error by not discussing it in their brief. For this reason it will not be regarded in this opinion.

Counsel strenuously insist in argument that the facts as found by the jury in the special verdict do not warrant the judgment rendered by the court.

The special verdict was in substance as follows:

That on the 5th day of December, 1890, the appellee was engaged in hauling with a wagon and a team of horses, across the appellant's railway, from a stone quarry; that in so going to and from where he was hauling, it was necessary for him to pass along a public highway running north and south, parallel with said railway and about fifty yards west of it; that, on the west of said highway there was a creek and a plank fence over which a team and wagon could not pass; that, on the east of said highway, the railway extended from the town of Ellettsville north in almost a straight line to a point where it crosses said highway; that there was no other outlet between said points; that the said team of horses were usually gentle and quiet, and were, at the time aforesaid, being driven by the appellee in a careful manner along said highway in a northerly direction; that, where said highway crosses a street in said town, a train of cars can be seen approaching from the south about one thousand feet; that at this point appellee stopped his team and looked and listened in order to ascertain if a train was coming from the south, but he did not see or hear any; that he then proceeded along said highway northward; that, after going about one hundred and fifty yards, "an irregular freight train, not on schedule time, bound north, passed through said town, and from the steam, noise, and approach of which said horses took fright and started in a trot along said highway, whereupon the appellee, holding the reins in his left hand, set the brakes on his wagon with his right, and thus checked said team," when the engineer sounded the whistle three or four times, and permitted steam to escape from his engine, which frightened the horses so that they became unmanageable and ran northward along said highway until they came near to the point where it crosses said railway, and thus coming near the train which was running with great speed, and was at the time crossing the said highway, they suddenly turned to the west, ran over said fence and down the embankment of, and into, said creek, breaking the appellee's arm and otherwise injuring him; that, at the time the horses started to run, they were "about one hundred yards north of, and in front of, said train," which was running about twenty miles an hour; that at the time there was an engineer, fireman, and brakeman on said train who saw the horses running away, and who at the time knew and understood the situation and condition of said highway, yet, notwithstanding, they made no effort to stop or check the speed of the train, "but willfully and carelessly increased the speed thereof, issuing sharp whistles, and putting on an extra amount of steam, and gradually coming up even with and opposite said team so running away"; that immediately north of a highway crossing in the said town, at a curve, is a whistling post, marking the spot where the engineer of a train is required to sound his whistle for the highway crossing south of said town; that there is another whistling post about half way between said town and the highway crossing where the appellee was injured; that the engineer sounded the whistle four times at each of said posts; that just prior to the sounding of the whistle in said town, the appellee had got his horses partly under control, and the brakes set on his wagon; that if the engineer had not sounded the whistle the accident would not have occurred; that if those in charge had "checked and slowed up the train," the appellee would have passed the crossing and would not have been injured; that if the brakes had been properly applied, and the said employes had done their duty, the train could have been stopped entirely "or so checked and slowed up, and thus have prevented the injury"; that the train, in approaching said town, gave no signal of its approach; that, from the time the horses started to run away with the appellee, the persons in charge of the train were in a position to see and know that the plaintiff was in great danger of losing his life or of receiving great bodily harm, and that his safety depended upon his either stopping his team or in passing said crossing in advance of said train, but that said train outrun said team and closed up the only avenue of escape; that "the appellee received his injury by the careless and willful conduct of the employes in the management of said freight train, and without fault on his part."

The evidence is properly in the record.

Counsel for appellant have filed an elaborate brief, in which they contend that the facts, as found by the jury in the special verdict, do not show negligence on the part of the company's servants who were in charge of the train at the time the appellee was injured.

We have carefully read the special verdict, together with the evidence given at the trial. The facts, as found by the jury, substantially respond to the allegations in the complaint. In this respect the verdict is unobjectionable. As far as proof of the facts involved was concerned, there was a material conflict in the testimony of witnesses.

This, under the settled rules of this court, resolved itself into a question of credibility for the jury to determine. This they did by ascertaining the facts and stating them in the verdict. The facts as found were fairly established by the evidence. The legal effect of the facts thus found will determine whether the judgment of the court below must stand or fall.

Desiring to give the learned counsel for the appellant the full benefit of their theory concerning the rules of law applicable to the facts as established by the verdict, we give here the quotations they make in their brief from decisions of eminent respectability:

"A railroad corporation, having a chartered right to run its trains, has necessarily the right to make all reasonable and usual noises incident thereto, whether occasioned by the escape of steam, rattling of the cars or other causes." Whitney v. Maine, etc., R. R. Co., 69 Me. 208.

"By being empowered to run their trains over their road, the defendants have necessarily the right to make the reasonable and usual noises incident thereto, whether occasioned by the escape of steam, the rattling of the cars over the track or in any other manner. Although such noises may cause much annoyance and danger to those who are driving horses in the immediate vicinity, they must be prepared for them." Norton v. Eastern R. R. Co., 113 Mass. 366.

"The frightening of horses or teams, and injury resulting therefrom, by the cars and other property of a railroad, and the legitimate use thereof, at the depot or other place of the company, is not a ground of action against the company, if the company do no more than use the same in a proper manner." Rorer on Railroads, 704.

"Railroad companies are not liable for frightening animals by their locomotives, cars or carriages, even though the fright causes the animals to kill themselves. This question has been carefully considered and fully settled by this court." Baltimore, etc., R. W. Co. v. Thomas, 60 Ind. 107.

"The frightening of a horse is a thing that can not be anticipated and is governed by no known rules. In many instances a spirited road horse will pass in safety an obstruction that a quiet farm horse will scare at. A leaf, a piece of paper, a lady's shawl fluttering in the wind, a stone or stump by the wayside, will sometimes alarm even a quiet horse. * * * If a farmer may not have a barrel of cider, a bag of potatoes, a wheel-barrow, or a wagon standing on his premises by the wayside, except at risk of having his whole establishment swept away in an action for damages occasioned by the fright of an unruly horse, the vocation of agriculture will become perilous indeed."...