Vandalia R. Co. v. Mcmains

• Decision Date: 20 November 1908
• Docket Number: No. 6,569.,6,569.
• Citation: 85 N.E. 1038,42 Ind.App. 532
• Parties: VANDALIA R. CO. v. McMAINS.
• Court: Indiana Appellate Court

42 Ind.App. 532

85 N.E. 1038

VANDALIA R. CO.

v.McMAINS.

No. 6,569.

Appellate Court of Indiana, Division No. 2.

Nov. 20, 1908.

Appeal from Circuit Court, Putnam County; John M. Rawley, Judge.

Action by Eva McMains against the Vandalia Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.J. H. James, and D. P. Williams, for appellant. James P. Hughes, for appellee.

ROBY, J.

This is an appeal from a judgment for $300 damages in favor of plaintiff against the Vandalia Railroad Company. The basis of liability is the alleged negligence of defendant in permitting steam to escape from one of its engines, which so frightened the horse plaintiff was driving that it ran away, upset the buggy, threw her out and injured her. Demurrers to the two paragraphs of complaint were overruled, answers were filed in general denial, and the case was tried by a jury. The error relied upon is the overruling of defendant's motion for a new trial, which assigned as reasons therefor that the verdict is not sustained by sufficient evidence and that it is contrary to law.

The facts of the case with regard to the accident as shown by the evidence are substantially as follows: The plaintiff, Mrs. Eva McMains, with her brother-in-law, was on a certain day driving a horse and buggy into the city of Greencastle from the south over the Cloverdale road, which is crossed by the tracks of the defendant. Standing on the railroad tracks a few feet west of the crossing was a locomotive and a train of freight cars, which had stopped on the switch there to take water and to meet a west-bound passenger train. Plaintiff stopped near the crossing and then attempted to drive across, when, according to the evidence of herself and her brother-in-law, the engine emitted a large quantity of steam. The horse became frightened, reared, turned to the east, and threw both plaintiff and her brother-in-law out, causing the injuries of which she complains. The evidence also shows that prior to stopping at this crossing the engineer dropped off his engine at the station in Greencastle to get orders, for which he had to sign, leaving the engine in charge of the fireman; that the engineer dropped off at the depot at 12:56 p. m.; that it took the fireman 4 or 5 minutes to pull from the depot to the water crane; that the west-bound train arrived at 1:20 p. m., after which the freight train left. It is also shown that it took 4 or 5 minutes for the fireman to fill the water tank, after which he attended to the fire; that the engineer arrived at the engine 5 minutes after the accident, and it was 10 minutes more until the train left; that it was not necessary to have a high pressure of steam until time to start, and that this could be had under the existing conditions in 3 or 4 minutes' time; and that pressure could be reduced by three other modes than by the safety valve or muffler. The fireman testified that no steam escaped as plaintiff complains.

The law with regard to accidents caused by horses becoming frightened by the emission of steam from engines is well settled. 2 Thompson on Negligence, pars. 1922-1924. The use of steam by railway companies is lawful (Burns' Ann. St. 1908, § 5195, cl. 8), and, if horses take fright at the necessary escape of steam while it is being used in the usual and ordinary manner, no action will lie (Louisville, etc., R. Co. v. Schmidt, 134 Ind. 16, 33 N. E. 774;Philadelphia, etc., R. Co. v. Burkhardt, 83 Md. 516, 34 Atl. 1010;Abbott v. Kalbus, 74 Wis. 504, 43 N. W. 367;Duvall v. Baltimore, etc., R. Co., 73 Md. 516, 21 Atl. 496;Lamb v. Old Colony R. Co., 140 Mass. 79, 2 N. E. 932, 54 Am. Rep. 449)- any damage that may result therefrom is damnum absque injuria. But though the escape of steam is rightful in itself and at a proper place, the defendant will be liable if the steam is blown off negligently or carelessly in an unusual and unnecessary manner. Louisville, etc., R. Co. v. Schmidt, 147 Ind. 647, 46 N. E. 344;Ft. Wayne Cooperage Co. v. Page (Ind.) 84 N. E. 145;Omaha, etc., R. Co. v. Clark, 35 Neb. 867, 53 N. W. 970, 23 L. R. A. 504;Hahn v. So. Pac. R. Co., 51 Cal. 605;Terre Haute, etc., R....