The North Manchester Tri-County Agricultural Association v. Wilcox

• Decision Date: 17 February 1892
• Docket Number: 235
• Citation: 30 N.E. 202,4 Ind.App. 141
• Parties: THE NORTH MANCHESTER TRI-COUNTY AGRICULTURAL ASSOCIATION v. WILCOX
• Court: Indiana Appellate Court

30 N.E. 202

4 Ind.App. 141

THE NORTH MANCHESTER TRI-COUNTY AGRICULTURAL ASSOCIATION v. WILCOX

No. 235

Court of Appeals of Indiana

February 17, 1892

From the Huntington Circuit Court.

Judgment affirmed, with costs.

J. B Kenner and B. F. Clemens, for appellant.

J Farrar, J. L. Farrar, W. C. Farrar, L. P. Milligan and O. W Whitelock, for appellee.

OPINION

NEW, J.

This was an action brought in the circuit court by the appellee against the appellant.

The material facts set out in the complaint may be thus stated:

In October, 1886, the appellee was the owner of a horse of the value of $ 2,000, and a sulky worth $ 75. The appellant at that time was the owner and proprietor of a track, prepared and held out to the world by it as a place for the exhibition of the speed of horses, and had advertised and solicited the public to exhibit and speed horses thereon, representing that said track was suitable and safe in all respects therefor. The appellant prepared a certain contest, or exhibition, called a "free for all pace," to take place on said track, for a premium of $ 150, and solicited and accepted from the appellee $ 15, as a fee for the privilege of entering said contest for said premium. The appellee entered his horse upon said track in a careful manner, and while exercising him, at the special call of the appellant, preparatory to said exhibition of speed, and while using all diligence in such exercise, the appellant, disregarding the rights of the appellee and other exhibitors, negligently permitted the multitude invited there by the appellant for its own gain and profit, to rush upon, stand, and walk upon said track, so as to obstruct the view of the same, and made no effort to clear the track, so that the appellee could not see others thereon who were in the rightful use of it, preparatory to said contest of speed. While the appellee was then and there exercising his said horse, the appellant negligently suffered and permitted the track to be obstructed, as alleged, and the appellee's horse, in consequence thereof, collided with another horse, then and there rightfully upon the track, whereby the appellee's horse and sulky were wholly destroyed, without any fault or negligence on the part of the appellee, to his damage $ 2,000.

A demurrer was overruled to the complaint, and exception saved. An answer of general denial was filed, the cause submitted for trial to a jury, and verdict returned for $ 400 in favor of the appellee.

Over a motion for a new trial made by the appellant, there was judgment for the appellee upon the verdict.

The appellant assigns as error the overruling of the demurrer to the complaint, and the overruling of the motion for a new trial.

The objection taken to the complaint, by the appellant's counsel, is that there is no obligation in it that the appellant, its officers or servants had knowledge or notice of the obstruction, to the track named in the complaint; and, moreover, that it was not negligence in the appellant to permit persons to go upon its tracks.

We think the complaint states facts sufficient to constitute a cause of action.

The appellee was using the appellant's track upon invitation and in consideration of a fee paid, and it was the duty of the appellant to exercise due and reasonable care that the track should be in such condition that it could be safely used for the purpose to which it was devoted. The relation existing between the appellee and the appellant was such as to impose this obligation upon the latter. The...