Vandalia Railroad Co. v. McMains, 6,569

• Docket Nº: 6,569
• Citation: 85 N.E. 1038, 42 Ind.App. 532
• Case Date: November 20, 1908
• Court: Court of Appeals of Indiana

85 N.E. 1038

42 Ind.App. 532

VANDALIA RAILROAD COMPANY
v.
MCMAINS

No. 6,569

Court of Appeals of Indiana

November 20, 1908

From Putnam Circuit Court; John M. Rawley, Judge.

Action by Eva McMains against the Vandalia Railroad Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

John H. James, D. P. Williams and John G. Williams, for appellant.

James P. Hughes, for appellee.

OPINION [85 N.E. 1039]

[42 Ind.App. 533] 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 plaintiff 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 been stopped on the switch there to take water and to meet a west-bound passenger-train. Plaintiff stopped near the crossing and [42 Ind.App. 534] 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 alighted from his engine at the station in Greencastle at 12:56 o'clock p. m. to get orders, for which he had to sign, leaving the engine in charge of the fireman; that it took the fireman four or five minutes to pull from the depot to the water-crane; that the west-bound train arrived at 1:20 o'clock p. m., after which the freight-train left; that it took four or five minutes for the fireman to fill the water-tank, after which he attended to the fire; that the engineer arrived at the engine five minutes after the accident, and it was ten 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 three or four minutes; that pressure could be reduced by three modes other than by the safety-valve or muffler. The fireman testified that no steam escaped, as...