Vandalia Railroad Co. v. McMains
| Decision Date | 20 November 1908 |
| Docket Number | 6,569 |
| Citation | 85 N.E. 1038,42 Ind.App. 532 |
| Parties | VANDALIA RAILROAD COMPANY v. MCMAINS |
| Court | Indiana Appellate Court |
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.
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 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 plaintiff complains.
The law with regard to accidents caused by the frightening of horses by the emission of steam from engines is well settled. 2 Thompson, Negligence (2d ed.), §§ 1922-1924. The use of steam by railway companies is lawful (§ 5195 Burns 1908, cl. 8, § 3903 R. S. 1881), 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 [1893], 134 Ind. 16, 33 N.E. 774; Philadelphia, etc., R Co. v. Burkhardt [1896], 83 Md. 516, 34 A. 1010; Abbot v. Kalbus [1889], 74 Wis. 504, 43 N.W. 367; Duvall v. Baltimore, etc., R. Co. [1891], 73 Md. 516, 21 A. 496; Lamb v. Old Colony R. Co. [1885], 140 Mass. 79, 2 N.E. 932, 54 Am. Rep. 449), and any damage that may result therefrom is damnum absque injuria. But though the escape of steam at a proper place is rightful in itself, 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 (1897), 147 Ind. 638, 46 N.E. 344; Ft. Wayne Cooperage Co. v. Page (1908), 170 Ind. 585; Omaha, etc., R. Co. v. Clarke (1892), 35 Neb. 867, 53 N.W. 970, 23 L. R. A. 504; Hahn v. Southern Pac. R. Co. (1877), 51 Cal. 605; Terre Haute, etc., R. Co. v. Doyle (1894), 56 Ill.App. 78. "While the rights of the company are to be respected and protected, other persons also have rights which in like manner must be respected by the company and its employes." Omaha, etc., R. Co. v. Clark, supra. The rights and duties of the appellant and appellee at the crossing in question were mutual, and both were respectively bound to do what the law required. Louisville, etc., R. Co. v. Schmidt, supra. To charge the railroad company in this case with liability, the evidence must establish facts which warrant the inference of...
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