24 Ind. App. 192 | Ind. Ct. App. | 1899
Appellee was plaintiff below, and brought this action to recover damages for the death of the decedent resulting from the alleged negligence of the appellant. The complaint, upon which the case went to trial, was originally in two paragraphs, but, pending the trial, appellee dismissed as to the first paragraph, and the trial proceeded to final judgment upon the issues joined as to the second paragraph of complaint.
The substantial and material averments of the second paragraph of the complaint are as follows: That appellant is a corporation, owning and operating a railroad which runs through the village of West Point, in Huntington county, Indiana; that said railroad crosses a public highway where it passes through said village, which highway is located on the west line of section twenty-two, township twenty-nine north of range eight, at a point 400 feet north of the southwest corner of said section, extending nearly in an east and west course; that on the north side of said railroad, and adjoining said highway on the east, a lumber yard and sawmill are situated, and the view over the same from the west is open and unobstructed; that on April 9, 1896, decedent was engaged at said mill-yard, about ninety feet north of the railroad track, in loading lumber on a wagon, to which a team of horses was hitched; that said team was ordinarily quiet, well broken, easily controlled, not subject
To this paragraph of complaint appellant addressed a demurrer for want of sufficient facts, which was overruled, and an exception reserved. The issue was joined by answer in general denial, trial by jury, a general verdict for appellee for $2,500, and with the general verdict the jury answered and returned certain, interrogatories addressed to them. The appellee moved the court for judgment on the general verdict, and the appellant moved for judgment in its favor on the answers to interrogatories, notwithstanding the general verdict. The court sustained the appellee’s, and overruled the appellant’s motion for judgment. Appellant moved for a new trial, which was overruled, and time given for filing a bill of exceptions.
Appellant has assigned error as follows: (1) That the second paragraph of complaint does not state facts sufficient to constitute a cause of action; (2) that the court erred in overruling the demurrer to the second paragraph of complaint; (3) the court erred in overriding appellant’s motion for judgment in its favor on the answers to interrogatories; (4) the court erred in sustaining appellee’s motion for judgment, and (5) the court erred in overruling appellant’s motion for a new trial. The second and third specifications of the assignment of errors may be considered together.
It is first urged that the second paragraph of complaint is bad because it does not specify or state the character in which appellee sued. This objection has no merit. The complaint on its face shows that the appellee was the administrator of the estate of Frederick Rohlfing. True it does not aver, in express terms, that he was duly appointed
"We pass now to a consideration of the complaint as to the sufficiency of the facts pleaded. It is a plain proposition that the complaint proceeds upon the theory that the decedent’s injury and death resulted from the alleged careless, negligent, and unnecessary sounding of the whistle on appellant’s locomotive, which frightened the horses, so that they ran away, etc.
It appears* from the complaint that the decedent was ninety feet north of the railroad track and 150 feet east of the highway; that for some distance before coming opposite to where decedent was, he was in full view, and that no obstructions intervened between him and the approaching train; that when he saw the train approaching, he took hold of the bridle of one of the horses, and directed his foster-son to take hold of the other, and they were in that position as the train approached.
A railroad company having a legal right to operate its road by running trains propelled by steam may make all noises usually incident thereto, whether occasioned by the escape of steam, rattling of cars, or other necessary causes. Whitney v. Maine, etc., R. Co., 69 Me. 208. And they may thus operate their trains, although the noises usually incident thereto may cause much annoyance and danger to those who are near them, or driving horses in their immediate vicinity. See Bailey v. Hartford, etc., R. Co., 56 Conn.
In Billman v. Indianapolis, etc., R. Co., 76 Ind. 166, 40 Am. Rep. 230, it was said: “The mere sounding of the whistle cannot be deemed negligence, although blown in close proximity to the highway, and even though there are horses in the immediate vicinity.”
In Cincinnati, etc., R. Co. v. Gaines, 104 Ind. 526, 54 Am. Rep. 334, it was held that the sounding of a locomotive whistle, even at a place of extraordinary danger, where teams are likely to be frightened thereby, is not negligence per se, and to justify an inference of negligence from such act, the party having the burden at issue must show that it was done under such circumstances as made it at the time negligent.
In Kansas, in a case involving the principles we are now discussing, it was said: “It cannot be questioned that defendant’s train was rightfully on its track, and that the blowing of a whistle, and the letting off of steam with its attendant noise, are not per se acts of negligence, or evidence of wrongful conduct.” Culp v. Atchison, etc., R. Co., 17 Kan. 475.
If the servants of appellant were guilty of no unlawful conduct, while exercising a lawful right, the fact that the decedent’s team took fright at the sound of the whistle can not make appellant liable. Cincinnati, etc., R. Co. v. Gaines, supra.
In the case of Philadelphia, etc., R. Co. v. Stinger, 78 Pa. St. 219, it -was held that the mere fact of whistling furnishes no presumption of negligence.
In all the cases cited, and in many others to the same effect, the rule is stated that a railroad company, in the legitimate operation of its road, is not liable for injuries resulting from noises, such as the escape of steam, the sounding of the whistle and the ringing of the bell, and may make, all noises usually incident thereto, without becoming liable for injuries resulting therefrom, when it is without fault or negligence. This rule rests upon the ground that in the operation of a railroad it is necessary to use steam, whistles, and bells, and that noise from the running of trains, cars, and locomotives is a natural incident thereto; and further, that a railroad company has the right to make use of such means, although the noises, etc., usually incident thereto may cause much annoyance and even danger to those who may be in proximity thereto, or driving horses near them. But it has never been, held, so far as we know, that a railroad company can exonerate itself from liability where injury has resulted from the unlawful or negligent use of steam, whistles, and bells, resulting to the injury of another, where such injured party was free from fault; but, on the contrary, the opposite rule prevails.
Mr. Rorer, in his work on railroads, at page 'TOf, in discussing the rule in regard to frightening horses, says: “But if the acts of the servants occasioning the fright are wanton and malicious, and be done in the discharge of their business, by using the appliances of the company, such as wanton whistling of the engine, and the reckless discharge of steam, the company will be liable.” Peru, etc., R. Co. v. Hasket, 10 Ind. 409, 71 Am. Dec. 335; Ohio, etc., R. Co. v. Cole, 41 Ind. 331.
Appellant, however, urges with much force and plausibil
It has been held by the Supreme Court that the mere sounding of the locomotive whistle, even at a place of extraordinary danger, is not negligence per se. _ Cincinnati, etc., R. Co. v. Gaines, 104 Ind. 526; Indianapolis, etc., R. Co. v. Boettcher, 131 Ind. 82. To the same effect is Elliott on Railroads, §1264, and Wharton on Neg., §836. But, on the other hand, it has been held that for negligence in sounding the locomotive whistle, and the making of other noises, such as permitting steam to escape, etc., whereby horses are frightened, resulting in injury, railway companies are liable. Thus Judge Elliott, in his work on railroads, §1264, said: “Although a railroad company is not liable, under ordinary circumstances, for the fright of horses caused by the operation of its road in the usual manner, it is liable for frightening horses and causing injury by unnecessary and excessive whistling or letting off steam under such circumstances as to constitute negligence or wilfulness.” See, also, Billman v. Indianapolis, etc., R. Co., 76 Ind. 166; Louisville, etc., R. Co. v. Schmidt, supra; Omaha, etc., R. Co. v. Clark, 35 Neb. 867, 53 N. W. 970, 23 L. R. A. 504; Chicago, etc., R. Co. v. Dunn, 52 Ill. 451. Many other cases might be cited, but the rule is so firmly established that it would be useless.
Counsel for appellant have cited us to the case of Aurelius v. Lake Erie, etc., R. Co., 19 Ind. App. 584, as being
The complaint in this case is very like that in Rodgers v. Baltimore, etc., R. Co., 150 Ind. 397. In that case the injury complained of resulted from a team of horses becoming frightened from the blowing of a locomotive whistle while such locomotive was passing over a bridge. Appellant was driving his team on a street near the bridge — the bridge and its approaches being elevated above the street — and a locomotive drawing a heavy train was crossing the bridge and going in the direction of appellant. It is averred in the complaint that as the train approached near to where appellant was, the appellee “carelessly, negligently, recklessly,
Appellant argues that it was entitled to judgment on the answers to interrogatories, notwithstanding the general verdict in favor of appellee, and hence that the overruling of its motion for judgment was error. To determine this question, we must look to the facts found in answer to the interrogatories, and to that end will only record such facts as we deem of importance to a decision of the question. As abridged, the facts specially found are as follows: That on the day decedent was killed, he was in a mill-yard about ninety-two feet from appellant’s road, near Bippus, Indiana, loading lumber on a wagon, to which a team of horses was attached; that said mill-yard was open to and used by the public for unloading logs and loading lumber; that on two previous occasions decedent had been there for the same purpose, and was driving the team which he had on the day he was killed; that trains passed while he was there on the
The fifth, sixth, and seventh assignments of error question the ruling of the court in overruling appellant’s motion for judgment notwithstanding the general verdict, and in sustaining appellee’s motion for judgment, and as they present substantially the same question, they may be considered together.
We enter upon this branch of the case with the fact in view that the jury, by their general verdict, found every fact in appellee’s favor necessary to warrant a recovery. By the general verdict, the jury found the substantive fact that appellant was negligent as charged, and the corresponding and substantial fact that appellee’s decedent was free from fault or negligence contributing to his death. To entitle a party to a judgment on answers to interrogatories, in the face of a general verdict in favor of his adversary, such answers, or some of them, must be in irreconcilable conflict with the general verdict.
After a careful examination and consideration of all the answers, we are tjnable to say that they, or any of them,
The eighth assignment of error questions the action of the court in overruling appellant’s motion for a new tidal. There are fourteen reasons assigned in the motion for a new trial, and we will consider them in the order in which counsel have discussed them. The first to the sixth reasons for a new trial may be considered together, as they relate to the sufficiency of the evidence to support the general verdict; the sufficiency of the evidence to support certain of the answers to interrogatories; that the general verdict is contrary to law, and certain of the answers to interrogatories are contrary to law. Upon an examination of the record, we find that there is ample evidence to support the general verdict and every material fact specially found, and any discussion of those questions would be useless.
Counsel for appellant next take up the discussion as to the admission and rejection of evidence. One Bruñe was examined as a witness for appellee. In his examination in chief he testified that the decedent’s team was well broken and gentle. On cross-examination he was asked if he did not know of his own personal knowledge that it had run away or had attempted to run away. ITis answer was: “Well, I don’t know any more than I have heard.” He was then asked: “Well, did you hear it?” To which he answered: “I heard it; yes sir.” On appellee’s motion this evidence was stricken out. Appellee did not object to these questions when they were asked, nor state any ground in support of his motion to strike- out the answers.
In Elkhart, etc., R. Co. v. Waldorf, 17 Ind. App. 29, it was held that the exclusion of expert evidence, where all the facts embodied in the offered evidence had already been given to the jury, and an opinion could have been readily formed by the jury, was not error. In Ross v. Stockwell, 19 Ind. App. 86, it was held reversible error to permit a witness to give his opinion as to the amount of damages covered by a failure of a landlord to make certain repairs for his tenant where the lease provided that the landlord would make such repairs. In a proceeding to lay out and construct a public highway, a witness can not give his opinion as to the public utility thereof. Hughes v. Beggs, 114 Ind. 427; Thompson v. Deprez, 96 Ind. 67; Yost v. Conroy, 92 Ind. 464, 47 Am. Rep. 156.
It was a material averment in appellee’s complaint that the excessive and continued blowing of the whistle was the cause of the horses taking fright, and that such whistling was unnecessary. It was. necessary for appellee to prove these averments by a fair preponderance of the evidence. It seems to us that the fact that the whistling was unnecessary could not properly be proved by opinion evidence. It would have been proper for appellee to show all the existing conditions and surroundings; to show where the usual crossing and station signals w.ere given; the location of the highway and the station; the speed of the train; the danger signal, if any, as shown by the semaphore; the point at which decedent was standing holding his team; and when such facts were shown, the jury were as competent as any witness to determine as to the necessity or non-necessity of blowing the whistle as charged. It would not require one
The deposition of Catherine Coblentz was read, and in it appear the following questions and answers: (8) “Did you see the train coming?” Ans. “No sir, I heard it coming.” (9) “Did it make a great noise?” Ans. “Yes sir. I told the old man at the time it was brutish the way they whistled.” At the proper time appellant moved to suppress and strike out the latter clause of the- answer to question nine, which motion was overruled. After the deposition 'was read, the motion to suppress and strike out was renewed, and met the same fate. It would seem, from argument of counsel for appellee, that this evidence was admitted on the sole ground that it was a part of the res gestae. They do not attempt to maintain that it was competent upon any other ground. It is clear to us that it was not admissible unless as a part of the res gestae. The evidence shows that the witness was in her house, a square and a half away from the scene of the accident, and knew nothing of it until some time after. If we can consider this evidence as a part of the res gestae, then possibly it was admissible but not otherwise. In Abbott’s Tr. Ev. (1st ed.) p. 589, it is said: “The declarations of any person present, made in the heat of the emergency, and forming a part of the incident and illustrating the nature, cause or extent of the wrong, may be proved as a part of the res gestae.” The term “res gestae”, in its strict legal sense, means, “a thing done; the facts of a transaction; circumstances evidentiary of a litigated fact. The circumstances, facts, and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character.” Anderson’s Law Diet., p. 887. The rule has also been stated as follows: “All declarations made at the same time the main fact under consideration takes place and
We must consider the situation of the witness and her location as to the scene and surroundings of the main litigated act. She was a square and a half away from the place of the accident. She did not know of it until some time after it occurred. She did not know that the decedent was in the mill-yard, or that there was any peril in his situation. She was in the quiet and calm of her own home, in the presence of her husband. She was not surrounded by any circumstances to excite her mind or arouse her emotions. She had no possible connection with the main fact to be litigated. She was not a bystander, and, so far as the litigated facts are concerned, was an entire stranger, except she heard the sound of the whistle. These are not the declarations of a person present, nor were they made in the heat of the emergency. They had nothing to do in illustrating the nature, cause, or extent of the wrong done. What the witness said to her husband in the quiet of their home could not have been a part of the res gestae, and we must so hold.
In this jurisdiction the rule is well settled that where immaterial evidence is admitted, it is harmless, because such evidence could not have influenced the verdict; but where material evidence is improperly admitted, and there is a probability that it worked injury, it will be sufficient to warrant a reversal. Morningstar v. Musser, 129 Ind. 470,
When incompetent evidence which is immaterial and irrelevant is admitted, it will be presumed to have affected the result unless the contrary is made to appear. King v. Enterprise Ins. Co., 45 Ind. 43; Thompson v. Wilson, 34 Ind. 94; Mays v. Hedges, 79 Ind. 288 at page 293. Where evidence is both immaterial and irrelevant, and yet has a tendency to mislead the jury, direct their minds into improper channels, excite and enlist their sympathies in favor of one or the other of the parties, or to arouse their prejudice against the opposite party, its admission is reversible error. Orr v. Miller, 98 Ind. 436, 443. While it is true that when the witness said, “I told the old man at the time it was brutish the way they whistled,” it was not responsive to the question, and was a voluntary statement, yet it referred to a vital fact in the case and must have impressed upon the minds of the jury with peculiar effect and force such fact, and at least had a tendency to excite the sympathies and arouse the prejudice of the jury. Appellee insists that the evidence was competent as a part of the res gestae, and upon no other ground, but we have seen that it was not a part of the res gestae, and no pretense is made that its admission could be upheld upon any other basis. We must be governed by the rales of evidence as fixed by an unbroken line of authorities. The evidence we have been considering was not proper to go to the jury, and as it does not appear from the record that it was harmless, we must presume that was so.