13 Ind. App. 588 | Ind. Ct. App. | 1895
The appellee, plaintiff below, while traveling upon a highway in Allen county, was thrown from the vehicle in which he was riding, and sustained injuries to his person. The injuries were caused by his horse becoming frightened at a beer keg thrown upon the highway by the appellant’s servant. This action was brought to recover damages for the injuries sustained, alleging negligence on the part of the appellant. The cause was tried by a jury, which returned a general verdict for appellee in the sum of $2,500.00, on which judgment was rendered.
The first' assignment of error calls in question the sufficiency of the complaint to withstand appellant’s demurrer for want of facts.
The substantial averments of the complaint are, that on the 9th day of August, 1893, the plaintiff was traveling on and along a public highway in a buggy drawn by a horse; that on said day the defendant was engaged in vending and delivering beer and other malt liquors; that situated along the highway, and within about fifty feet thereof, was a building used by the defendant in its business, as a saloon ; that when the plaintiff reached a point in the highway opposite the building, the defendant, by one of its servants who was in the building, “carelessly and negligently threw from the cellar of said building, into and upon said highway, in front of said horse, an empty beer keg, which frightened said horse, and caused it to become unmanageable and run away, upsetting said buggy, and hurling therefrom the plaintiff to and on the ground and against a fence, which resulted in inflicting upon his person many serious injuries as hereinafter stated; that said injuries were
The appellant assails this complaint with much vigor, asserting that it does not appear from the averments that the defendant owed the plaintiff any duty which the defendant failed to perform; that it nowhere appears from the averments that the horse which the plaintiff was driving was a road-worthy horse, or one of ordinary gentleness.
The principal and primary purpose of the ordinary highways is to afford the people of the State a means of inter-communication, and of passing from place to place. They are specially designed for passage and travel. But this is not the sole and exclusive purpose for which they may be used. They may be lawfully used for many other purposes, provided such uses do no materially interfere with the primary purpose. The right of the public to the use of the highways is subject to reasonable and necessary limitations. The improvement of the highways themselves ; the improvement of abutting lots, by digging cellars and the erection of buildings; their use for the carnage and delivery of grain, fuel and other goods; the loading and unloading of the same thereon, are legitimate uses of the highways, although such use may result in a temporary obstruction to the travel. Beach Pub. Corp., section 1230; Dill Munic. Corp., section 730.
The defendant had the right to use the highway for the purpose of loading and unloading its beer kegs, but the plaintiff’s right to travel thereon was the superior
It is for these reasons that in order to make the complaint good it should aver, either specially or in equivalent general terms, that the object or act done had a tendency to, or was likely to, frighten a horse of ordinary gentleness. In other words, the complaint must aver negligence on the part of the defendant and negative contributory negligence on the part of the plaintiff. Town of Rushville v. Adams, 107 Ind. 475; Elliott. Roads and Streets, pp. 448, 449; Piollet v. Summers, 106 Pa. St. 95; Pittsburgh, etc., R. W. Co. v. Taylor, 104 Pa. St. 306. If the obstruction or act be one that a person has no right to do or make at all, then there may be a liability, even though the horse be not one of ordinary gentleness. Ohio, etc., R. W. Co. v. Trowbridge, 126 Ind. 391. But no question of that kind is presented here.
The complaint before us does charge negligence on the part of the defendant, but it does not aver in direct terms that the horse the plaintiff was driving was an ordinarily gentle horse. It does charge, however, that the injury was caused “without any fault or negligence on the part of the plaintiff.” It has often been decided .that contributory negligence may be negatived by a general averment. Lake Erie, etc., R. R. Co. v. Griffin, 8 Ind. App. 47; Chicago, etc., R. R. Co. v. Barnes, 2 Ind. App. 213. There was no error in overruling the demurrer to the complaint.
The jury with their general verdict returned answers to interrogatories. The appellant moved for a judgment in its favor on these answers. This motion was overruled. This ruling is one of the errors assigned.
“1. Was not the plaintiff injured on the 9th day of August, 1893, in the manner and by reason of the causes stated in his complaint in this action? Ans. Yes.
“2. Were not the injuries which the plaintiff received caused by the negligence of a servant of the defendant, as stated in the complaint in this action? Ans. Yes.
“3. Were not the plaintiff’s injuries received by him without any fault or negligence on his part ? Ans. Yes; not his fault.
“4. Was not the horse that plaintiff was driving at the time he received the injuries of which he complains, of ordinary gentleness? Ans. Yes; he was.
“5. Were not the kegs which frightened the plaintiff’s horse, and the manner in which they were thrown,. naturally calculated to frighten said horse ? Ans. No; but they did.'’
The undisputed evidence shows that two kegs were • thrown, both of which frightened the horse, the second one causing it to run away.
It is settled by many decisions, that a general verdict of necessity covers the whole case. It includes the facts proved and the law as applied to them. It determines every material fact against the, unsuccessful party. Answers to proper interrogatories only determine special questions of fact. One of the purposes of interrogatories is to test the correctness of the general verdict; to determine whether or not the jury have correctly applied the law to the facts proved. If the general verdict be for the plaintiff and the existence of a certain fact be essential to the right of action, and should the jury in answer to interrogatories find that the fact does
This court in Grand Rapids, etc., R. R. Co. v. Cox, 8 Ind. App. 29, said: “ It is only when the answers to the interrogatories are absolutely iireconcilable with the
And in Evansville, etc., R. R. Co. v. Marohn, 6 Ind. App. 646, this language is used : ‘ ‘ Before the general verdict will yield to the special findings, they must so antagonize each other, that by no reasonable hypothesis can they be reconciled. It is then, and then only, that the findings control.” See also, Shuck v. State ex rel., 136 Ind. 63; Bedford v. Spilman, 11 Ind. App. 684.
The appellee’s learned counsel invoke the above rules and vigorously insist upon their enforcement in this case. It is contended, that it is possible to reconcile the answers to the interrogatories with the general verdict, and that such reconciliation is based upon a reasonable hypothesis.
Interrogatory number one is somewhat general in its character. If the “causes” referred to be construed to mean the breach of duty which the appellant owed the appellee, or the negligence charged, then the interrogatory was improper, and its answer cannot be considered. But if the word “causes” be construed to mean the throwing of the beer keg, the fright of the horse, and the hurling of the plaintiff to the ground and against the fence, then it was proper, and its answer is not in conflict, but in harmony with the general verdict. We. are inclined to give it the latter construction.
Interrogatories two and three ask for the opinion of the jury upon matters of law. They are improper and. should not have been given. Their answers cannot be considered either for the purpose of sustaining or overthrowing the general verdict. Louisville, etc., R. W. Co. v Pedigo, 108 Ind. 481.
Interrogatory four asked for a pertinent and material fact, and its answer tends to support the general ver
Interrogatory five was also pertinent and proper, for whether or not the beer Iceland the manner in which it was thrown were likely to frighten the plaintiff’s horse were important facts in the case.
By this interrogatory and answer it is disclosed that although the beer keg and the manner in which it was thrown did frighten plaintiff’s horse they were not naturally calculated to have that effect. If it was necessary to aver that the keg and the manner in which it was thrown were apt to or naturally liable or were intended or calculated to frighten a horse of ordinary gentleness, it was also necessary to prove it.
It is averred in the complaint that the ‘ ‘ beer keg so thrown and as thrown was well calculated to and did frighten said horse.” The interrogatory asks whether or not the beer kegs and the manner in which they were thrown were calculated to frighten the horse. The Word “calculated” is used in both the complaint and the interrogatory. Being used by the same party on the same occasion and in reference to the same matter the presumption would be that they were used in the same sense, and that the jury attached the same meaning to the word in the interrogatory as that applied to it in the complaint. The use of the word “calculate” in the sense of likely, apt or liable to, is perhaps permissible under the precedents, but such use is not to be commended. Calculate primarily means to compute mathematically. It implies the power to think, to study, and to reason. It is usually applied to sentient beings, those having the faculty of sensation, the power to perceive, reason and think. As a provincialism it is sometimes used in the sense of to intend, to design, to plan or to purpose.
In whatever sense the word was used in the complaint, it was, we think, used in the same sense in the interrogatory. If it means to intend, to design, to plan, or to purpose in the complaint, it means the same in the interrogatory. If it means having an aptitude or inclination in the complaint, it means the same in the interrogatory. If it was not necessary to aver that an object or thing had a natural tendency to frighten a roadworthy horse, then the answer to the interrogatory would not conflict with the general verdict, for the jury would not necessarily give it any meaning in the complaint. Was it necessary to make such averments? In Town of Rushville v. Adams, supra, in speaking of the sufficiency of the complaint, this language is used: “In order to render the corporation (the defendant) liable in such cases, it must in some way be made to appear that the object or obstruction was one naturally calculated to frighten horses of ordinary gentleness, and that the horse frightened was one of such a character.”
In Cleveland, etc., R. W. Co. v. Wynant, 114 Ind. 525, it is said: “It is not, therefore,, a subject to be pleaded and proved whether a box car or any other particular object is naturally .calculated to frighten horses. This is to be determined by the experience, observation and intelligence of the court and jury, as applied to all the facts of the particular case before them.” This language was used by the learned judge who wrote the opinion, not on a question of the sufficiency of the complaint, but on a question of the admissibility of evidence.
It is true, as appellee’s counsel urge, that it is possible to reconcile the answer to the interrogatory with the general verdict by saying that the word “calculated” was used in the sense of likely or apt in the complaint
Judgment reversed, with instructions to grant a new trial to appellee, if asked for within ninety days, otherwise to render judgment on the answers to the interrogatory.
Separate Opinion.
In my opinion, so far as the pleading is concerned, it was not necessary to allege that the negligent act which is charged as the proximate cause of the injury was calculated to cause the injury. Under the circumstances disclosed by the complaint, where it is made to appear that the injuries sustained were the proximate result of the negligent act of the defendant, the complaint on that question is sufficient. When one violates a duty he owes another, he is liable for all the probable results of his negligent act; and, therefore,