21 Ind. App. 486 | Ind. Ct. App. | 1898
Appellee, who was plaintiff below, sued the Terre Haute Electric Railway Company to recover damages for a personal injury alleged to have been caused by the negligence of the appellant company. The complaint was in two paragraphs; the first charging negligence, the second wilful injury. The second paragraph was withdrawn. A demurrer for want of facts to the first paragraph was overruled, the cause put at issue by general denial, and verdict returned in favor of appellee for $905. A motion for a new trial on the grounds that the verdict was com trary to law, was not sustained by sufficient evidence, that the damages were excessive, and for alleged er. rors of the court in admitting and refusing to admit evidence, and in giving and refusing to give instructions, was overruled, and judgment rendered on the verdict. The first and second errors assigned question the sufficiency of the complaint; the third, the action of the court in overruling appellant’s motion for a new trial.
The complaint charges that on the day of the alleged injury, defendant owned and operated a street railway line with double tracks running along a public street in the city of Terre Haute, and along the center of the National road east of said city; that on said day, while plaintiff and his wife were traveling in a one-horse buggy along said highway, and on the south side thereof, and going east, they met one of the defendant’s electric street cars going west; that “the said horse saw and heard the said car traveling as aforesaid, and said horse did then and there become frightened at said fast-going car, and noise caused thereby, and began to plunge and start, and was be
Booth on Street Railway Law, in section 298, states the law in the following language: “And, * * * for obvious reasons, companies which have been duly licensed, and, therefore, have as much right to run their cars in the streets as others have to drive, through them with their horses and vehicles, cannot ordinarily be held responsible for horses taking fright at the appearance, movement or noise of the cars. If a
In Doster v. Charlotte St. R. Co., 117 N. C. 651, 23 S. E. 449, the Supreme Court of North Carolina said: “Where a horse is being driven or is running uncontrolled along a highway parallel to a railway of any kind, though it give unmistakable evidence by its movements that it is alarmed at an approaching train or car, the engineer or motorman in charge is not negligent in failing to diminish the speed, unless the
The pertinency of these extracts from the text-book and reports justify, we think, the foregoing lengthy quotations. The complaint, judged by the law as set out in the foregoing authorities, is fatally defective. It does not appear from the averments that appellee would have been able, because of the gentleness of the horse or from any other reason, to have controlled it, and prevented the injury had the car been stopped before its near approach; nor that the motorman had any reason to apprehend the accident that occurred. Neither do they show that he manifested a wanton^disregard for the safety of appellee; nor that he had reason to believe that appellee, who was in the position which he believed the best to manage his horse, would not be able to do so. The averments that the car was being run at a high rate of speed and making a great noise, and that it was run carelessly and negligently, are not averments of facts showing negligence. Many decisions might be cited from the reports of this and other states in which railway companies have been held liable for damages occasioned by frightening horses. Upon examination it will appear that the lia
We do not deem it necessary to consider the other alleged errors discussed by counsel. Judgment reversed, with instructions to sustain the demurrer to the complaint.