131 Ind. 564 | Ind. | 1892
This action is brought by the appellee against the appellant for damages resulting to appellee by reason of an injury sustained on account of the negligence of the appellant in permitting their railroad and track to remain out of repair and out of grade at a highway or street crossing.
The first question presented relates to the sufficiency of the complaint. It is contended by the appellant that it is not sufficient for the reason that it appears from the averments that the appellee was an infant, and that she was driving the two-horse team, and prima facie it is negligence for an infant to drive a two-horse team, and, therefore, it shows the appellee to have been guilty of contributory negligence, and the demurrer ought’to have been sustained to the complaint. Appellant cites no authority in support of this theory, and we do not think it a proper rule to adopt. The complaint does not state the age of the appellee. For aught that appears in the complaint, she may have been over twenty years of age at the time of the injury. It is alleged that she was without fault or negligence.
There are no averments in the complaint to show that she was guilty of contributory negligence. The fact that she was an infant and was driving the horses does not of itself establish contributory negligence. There was no error in overruling the demurrer to the complaint.
It was the duty of the appellant, upon building its railroad across the highway, to restore the highway as nearly as possi
It is urged that the evidence is not sufficient to sustain the verdict, and it is insisted that it was contributory negligence to leave a team of horses so near the railroad in charge of a girl of the age of the appellee.
There is evidence authorizing the jury to have found that the horses were gentle and docile, that appellee had been accustomed to driving one of them a great deal during the year prior, and had driven both of them together quite a number of times within a short time previous to'the injury; that she had driven in the vicinity of the railroads and cars and across railroads, and that the horses were not afraid of or liable to be frightened by the cars, and did not frighten at them, and there was no reason to apprehend that the horses would become frightened at the cars or that there would be any danger in leaving them in charge of the appellee. The appellee at the time of the injury was twelve years of age, had been travelling for the past year with her father selling organs, and was accustomed to driving and handling these same horses. On this occasion the- horses became frightened at a train coming from behind and passing them and turned around and started across the railroad at quite a rapid gait, though it does not appear from the evidence that the horses appeared to be extraordinarily frightened or that they were beyond the control of the appellee and running away, but the appellee testifies that as they went up the grade to the railroad she put her foot on the brake and that
Some objections are urged to the instructions given in the case, particularly to the action of the court in refusing to give the third instruction requested by the appellant as requested and modifying the instruction and giving it as modified. There was. no error in the instruction as given,
Judgment affirmed with costs.