4 Ind. App. 141 | Ind. Ct. App. | 1892
This was an action brought in the circuit court by the appellee against the appellant.
The- material facts set out in the complaint may be thus stated:
In October, 1886, the appellee was the owner of a horse of the value of $2,000, aud a sulky worth $75. The appellant
A demurrer was overruled to the complaint, and exception saved. An answer of general denial was filed, the cause submitted for trial to a jury, and verdict returned for $400 in favor of the appellee.
Over a motion for a new trial made by the appellant, there was judgment for the appellee upon the verdict.
The appellant assigns as error the overruling of the de
The objection taken to the complaint, by the appellant’s counsel, is that there is no obligation in it that the appellant, its officers or servants had knowledge or notice of the obstruction, to the track named in the complaint; and, moreover, that it was not negligence in the appellant to permit persons to go upon its tracks.
We think the complaint states facts sufficient to constitute a cause of action.
The appellee was using the appellant’s track upon invitation and in consideration of a fee paid, and it was the duty of the appellant to exercise due and reasonable care that the track should be in such condition that it could be safely used for the purpose to which it was devoted. The relation existing between the appellee and the appellant was such as to impose this obligation upon the latter. The privilege for which the appellee paid could not be properly nor profitably enjoyed if the appellant failed to have its track reasonably fit and safe for speeding horses.
The case made by the complaint is not one of mere license, or passive assent, that the appellee might use its track. The grounds ánd track were under the supervision of the appellant, and this particular occasion was one for which it had made preparation for profit to itself. It, therefore, assumed the obligation of omitting no attention which was reasonably necessary to the proper use and enjoyment of its track by the appellee, under the circumstances. See Condradt v. Clauve, 93 Ind. 476; Indiana, etc., R. W. Co. v. Barnhart, 115 Ind. 399; Penso v. McCormick, 125 Ind. 116; Chicago, etc., R. W. Co. v. DeBaum, 2 Ind. App. 281.
The fact that the appellee- collided with another who was using the track can not, in our opinion, relieve the appellant from liability. That person, it is alleged in the complaint, was upon the track rightfully. But even if the person collided with was not rightfully upon the track, if the appellee
We can not say that the presence of so many persons upon the track, and the collision which took place between the two horses, were so unusual or extraordinary that they might not have been reasonably anticipated and provided against.
The averments in the complaint show that the appellant’s negligence, in not keeping the track clear, was the proximate cause of the injury to the appellee’s horse and sulky.
It is alleged in thé complaint that the appellee was without fault or negligence. That was a question proper, with other facts, to be submitted to the jury.
We are asked to reverse the judgment upon the evidence. This we can not do. The jury were the proper judges of the credibility.of the witnesses, and it was their province to weigh the evidence and determine its preponderance. There must be an absolute failure of evidence on some material point before this court will interfere because of the evidence alone. We think there was evidence tending to support the verdict of the jury in all material respects.
The judgment is affirmed, with costs.