34 Ind. App. 615 | Ind. Ct. App. | 1904
Appellee recovered a judgment against appellant for personal injuries alleged to have resulted from its negligence. The amended complaint is in two paragraphs, to each of which a demurrer was overruled. Answer in denial. Appellant’s motion for a new trial was overruled. Appellant asks a reversal upon two grounds: (1) That the trial court erred in overruling its demurrer to each paragraph of amended complaint; and (2) that it was error to overrule its motion for a new trial.
The only question discussed under the motion for a new trial is based upon the action of the court in giving instructions three and four. As these instructions relate to the same questions presented by the demurrer to the amended complaint, they may properly be considered in connection therewith. If the complaint states a cause of action, under the- theory upon which it proceeds, then the instructions correctly stated the law applicable to the facts.,
There is no material difference between the two paragraphs of complaint, and a statement of the facts relied upon in one will suffice for both. By the first paragraph the facts exhibited are as follows: Appellant is an incorporated city; it maintained a fire department; appellee was an employe of the city in its fire department; as such employe, one of his duties was to exercise the horses used for drawing fire engines; he was engaged in that duty when the horses he was exercising became frightened at an engine owned by the city, by its being propelled through one of the public streets, and appellant’s neglecting to send some one at least fifty yards in front of the engine, to warn persons of its approach. The theory of the complaint will appear from the following averment: “Plaintiff further avers that the defendant was at said time, and for several years previous thereto had been, the owner of a traction or road engine, which was propelled by steam-power, and which was used by the defendant for the purpose of rolling and repairing
It is clear that appellee bases his right to recover upon the failure of appellant to perform a duty placed upon it by statute. That statute is as follows: “Any person or owner of a traction or road engine shall, while using the said engine on any public highway, street or alley of any incorporated town or city, send some person in advance of said engine-, not less than fifty yards, to warn all persons approaching, who are in charge of a horse, team or teams, of their proximity to such engine.” §2044 Burns 1901, Acts 1889, p. 428, §1. “And it shall be the duty of the engineer in charge of said engine, or the owner thereof, upon the approach of said horse, team or teams, to drive said engine to one side of the road or street, when practicable, and to stop said engine until said horse, team or teams have passed said engine, and the whistle of said engine shall not be sounded while said horse, team or teams are passing.” §2045 Bums 1901, Acts 1889, supra. Section 2046 Bums 1901, Acts 1889, supra, fixes a penalty for a violation of any of the provisions of the statute. The title of this statute is as follows: “An act to make- it unlawful for any person or any owner of any traction or road engine, to run the same or use the said engine upon the- public highway, street or alley of any incorporated town or city in violation of this act, and fixing penalties for thp violation of this act.”
And this brings us to the consideration of the class of engines contemplated by the legislature in the act, and the evil or danger incident to the public it was intended to remedy or avoid. It is an historical, fact that the use of “traction or road engines” had become quite prevalent in all rural districts of the State at about the time of the passage of this statute. They were in general use, and at certain seasons of the year were propelled upon and over public highways to draw and run threshing machines. Such engines were calculated to frighten horses. It was recognized that, they were a modern and necessary improvement, and greatly to the interest of the farming community. They had a right to traverse the public highways, and, to protect the traveling public', the legislature wisely placed upon those who owned or operated them the duty of requiring them to send some person in advance to give warning to persons approaching who were in charge of horses. We have no doubt but that this was the purpose and intention of the legislature in passing the act. If the statute is applicable to cities, in operating steam-engines, in the improvement of streets, propelling street rollers, etc., then the facts pleaded state a cause of action.
We have a statute (§7083 Burns 1901, Acts 1893, p. 294, §1) which gives a right of action to1 an employe who may be injured by the negligence of a person in the service of a designated corporation, who has charge of a locomotive engine or train upon a railway, etc. In the case of Jarvis v. Hitch (1903), 161 Ind. 217, appellee was in the employ of appellant, who was receiver of a railway company, and was injured by the alleged negligence of a servant of appellant, who was in charge of a machine known as a pile-driver. The pile-driver consisted of a steam-engine placed upon one end of a flat-car, and the driver, used in raising the hammer, placed at the other end of the car, all forming one machine, containing machinery by which the car was moved from place to place on the railroad track by means of the motive power of the engine: Appellee based his right to recover upon subdivision four of §7083, supra, known as the employers’ liability act. The court, in construing the expression in the statute, “locomotive engine,” said: “We think it is clear that the steam pile-driver was not a ‘locomotive engine’ within the meaning of said fourth subdivision of section one of the act of 1893 (Acts 1893,
Construing the complaint most strongly against the pleader, and by the theory which is most apparent and clearly outlined by the facts stated in it, and according to its general scope and tenor, as we must, we are led to the conclusion that the theory of appellee’s complaint is that he seeks a recovery upon the proposition that it was actionable negligence for appellant to neglect to send some one forward at least fifty yards to warn appellee, who was in charge of horses, and approaching the engine. Upon that theory the complaint does not state a cause of action.
Judgment reversed, and the trial court is directed to sustain appellant’s demurrer to the complaint.