The Pittsburgh, Cincinnati and St. Louis Railroad Company v. Kitley

• Decision Date: 02 April 1889
• Docket Number: 11,637
• Citation: 20 N.E. 727,118 Ind. 152
• Parties: The Pittsburgh, Cincinnati and St. Louis Railroad Company v. Kitley
• Court: Indiana Supreme Court

20 N.E. 727

118 Ind. 152

The Pittsburgh, Cincinnati and St. Louis Railroad Company v. Kitley

No. 11,637

Supreme Court of Indiana

April 2, 1889

From the Marion Superior Court.

Judgment affirmed, with costs.

T. A Hendricks, C. Baker, O. B. Hord, A. W. Hendricks, A. Baker and E. Daniels, for appellant.

A. C Ayres, E. A. Brown and L. M. Harvey, for appellee.

OPINION

Olds, J.

This is an action brought by the appellee against the appellant for damages resulting to the appellee by reason of her horse becoming frightened at a car negligently left standing upon the railroad track of appellant at a highway crossing, causing the horse to become unmanageable, running away and throwing appellee from her buggy and severely injuring her.

The errors assigned and discussed by counsel for appellant in their brief are the overruling of the demurrer to the complaint and the overruling of the motion of appellant for a new trial.

After some formal allegations the complaint avers that on the 16th day of April, 1882, the defendant (the appellant) was using and operating a line of railway between the city of Columbus, in the State of Ohio, and Indianapolis, in the State of Indiana, which line passed through the town of Cumberland, Marion county, Indiana; that for two days before said 16th day of April, 1882, the employees of said road carelessly and negligently placed a car, which was used by said company, the defendant, in carrying freight over the line of its said road track, in the public highway crossing said track, leading from the town of Cumberland to the home of the plaintiff, about five miles south of Cumberland, in such manner that the wheels under the east end of said car were standing on or near the west end of a plank roadway in about the center of said highway, which plank way had been provided as a crossing of said railroad track, and the east end of said car was nearly in the center of said public highway, partially obstructing the passage; that the employees of said defendant carelessly and negligently caused and allowed said car to so remain partially obstructing said highway, from the time it was so placed there until after the happening of the accident hereinafter set out; that another car used for the same purpose was standing over a cow-pit to the east side of said highway, and that on the 16th day of April, 1882, plaintiff was travelling with one Jennie Tishner, in a buggy drawn by a horse which she had been accustomed to drive, and which was a very gentle animal, along said public highway so leading from said town of Cumberland, which highway was the nearest and most direct route from said town to her home, and which crosses the defendant's road track, which passes through said town as above stated; that she attempted to cross said road track through the space left between said cars, which was the only place for her to cross said track, turning a little to the east so as to have room to pass, and she says she approached said crossing with due care, but just as the horse reached said track he became frightened at the car so wrongfully placed and left standing in said road to its right, and commenced backing and rearing, and, becoming unmanageable, threw this plaintiff from said buggy upon the ground, also throwing the other occupant of the buggy, who was a large and heavy woman, upon her; that she was a married woman, and in delicate condition, and was so hurt by the fall that she could not walk. Other allegations describe the nature and extent of the injury, and allege that said accident occurred without plaintiff's fault, or the fault of the young lady riding with her, contributing thereto.

The objections urged to the complaint by counsel for appellant are: First. That there is no allegation in the complaint as to why the horse became frightened at the car; that a car is not of itself a thing likely to frighten a horse, any more than a tree or a house, and that to make the complaint good it should allege that there was something peculiar and unusual about the car, likely to frighten a horse. This objection, if tenable at all, could not be reached by demurrer. The complaint does allege that "the horse became frightened at the car," and this allegation is sufficient. There would be some force in the argument of counsel if addressed to a motion to make the complaint more specific, yet even as against such a motion we think the complaint would be good; but the complaint is clearly good as against a demurrer on account of this objection. In the case of Brookville, etc., T. P Co. v. Pumphrey, 59 Ind. 78, the complaint alleged that the appellee's horse became frightened at a hole in the turnpike; that appellants had allowed the turnpike to get out of repair, and the floods had washed a hole near the center of the road, and appellants had negligently allowed it to so remain out of repair, and while appellee was riding on horseback upon the turnpike, her horse took fright at the hole and threw her, inflicting severe injuries. The allegations in the two...