28 Ind. App. 289 | Ind. Ct. App. | 1902
Action by appellee for personal injuries at a street crossing. Appellant’s road, having at the place in question four tracks, runs east and west, crossing at grade a principal street in the city of Kendallville. Appellee approached the crossing with a team and load of hay, and appellant’s flagman at the crossing signaled for him to cross. There was at the time standing near the crossing a locomotive engine attached to a train of freight cars. The locomotive was not emitting any steam or making any noise. There was nothing to obstruct the view of appellee by appellant’s servants in charge of the engine. Appellee, believing it was safe to cross the tracks, and believing that the engine would remain as it was and would not move until he
The starting of the locomotive and train in a way that produced such noises only as are necessarily produced in properly starting them, even though at a place of danger and where horses are likely to be frightened, is not negligence per se. It must also be shown that it was.at a time and under such circumstances as made it negligence. Cincinnati, etc., R. Co. v. Gaines, 104 Ind. 526, 54 Am. Rep. 334; Billman v. Indianapolis, etc., R. Co., 76 Ind. 166, 40 Am. Rep. 230; Chicago, etc., R. Co. v. Cummings, 24 Ind. App. 192.
It is true it is sufficient, as against a demurrer, for the complaint to charge that the act resulting in injury was negligently or carelessly done. This has been held many times. But this rule has no application if other averments show that the acts charged were lawful and proper. The injury here in question resulted from loud and hissing and rattling noises, which the complaint shows will result from a proper use of steam in starting and moving an engine and train.
The act of the flagman in signaling appellee to cross goes properly to the question of appellee’s contributory negligence. Peirce v. Jones, 22 Ind. App. 163. Upon the question of appellee’s freedom from fault the complaint is not open to objection. The direction of the flagman was an assurance of safety upon which appellee had a right to rely, Louisville, etc., R. Co. v. Schmidt, 147 Ind. 638, but it is not averred that the flagman was negligent in directing appellee to cross the track under the circumstances claimed to have existed. The liability of appellant is not claimed because of any negligent act or conduct of appellant’s flagman.
The engine and train were rightfully upon appellant’s track. Appellee Avas rightfully upon the highway, and in driving his team across the track Avas guilty of no negli
If, then, the complaint is sufficient it must be because the starting and moving of the engine and train and the producing of these usual and necessary noises were at a time and under such circumstances as made an otherwise lawful act, unlawful. It is averred that the team was gentle and was driven slowly. Conceding that the employes in charge of the engine saw the team all the time it was passing over the crossing, there is nothing to show that it was in any way frightened as it passed the engine, or that appellee was having any trouble controlling it, or that he was in any peril, or in any apparent danger. The team had passed upon the tracks and crossing and was about forty feet away from the engine. The complaint discloses no facts or circumstances existing at the time from which it could be said that those in charge of the engine could reasonably be expected to anticipate that the usual noises produced in starting an engine and train would frighten the team.
In the ease at bar it is not claimed that there was any wilful or reckless conduct on the part of those in charge of the engine, or that any unusual or unnecessary noises were produced. In Rodgers v. Baltimore, etc., R. Co., 150 Ind. 397, the complaint charged the blowing of the whistle, “carelessly, negligently, recklessly, and without any neces
Judgment reversed.