4 Neb. 446 | Neb. | 1876
I. In my view of This case it is unnecessary to notice more than one of the several errors relied on for a reversal of the judgment.
The action in the court below was brought to recover for personal injuries sustained by the defendant in error while driving across the depot grounds of the plaintiff in error, in consequence of his horse taking fright, and throwing him from his buggy. In Ms petition, after narrating at considerable length the reasons which induced him to attempt to cross the railroad track at the particular place in question, the plaintiff alleges that he “ knew nothing of the arrangement and scare crow which the defendant had placed near the wagon road of said west crossing, by placing its cars and other implements used by the agents and employes of this defendant, in such a manner as to present a horrid and frightful appearance;” that thereupon the horse he was driving “ became frightened at the frightful and horrible arrangement of the cars and implements,” and suddenly wheeling round threw him violently from the buggy to the ground, doing the injury complained of.
It is not enough to allege merely that the cars presented a “frightful ” appearance, for that is simply the opinion of the plaintiff, and is altogether too indefinite and uncertain as a matter of pleading. Besides, the mere fact that the appearance was frightful to the plaintiff or to his horse is not sufficient, but it must be shown that the arrangement, whatever it may have been, was neither usual nor customary with railroad companies under like circumstances, and in addition thereto, one which common prudence would condemn as being calculated to frighten teams passing that way. But nothing of this sort is alleged, and I am very clearly of opinion that the demurrer, interposed by the defendant to the petition, should have been sustained.
The judgment of the district court must be reversed, the demurrer to the petition sustained, and the cause remanded for further proceedings, in conformity with the views herein expressed.
Judgment accordingly.