37 Ind. App. 626 | Ind. Ct. App. | 1906
The appellee, a minor, suing by her next friend, alleged in her amended complaint that the defendant, the appellant, is a municipal corporation in Cass county, organized and existing under the general laws of this State for the incorporation of towns; “that among other streets named in said town is a street named and known as North street, which street was and is one of the public and much-used streets of the defendant, and then was, for many months had been,- and still is, a public highway under the exclusive dominion and control of the defendant; that upon, to wit, November 18, 1901, in the evening after dark, plaintiff was riding in a vehicle drawn by a horse hitched thereto, which she was then and there driving with due care on and along said street, said horse being a well-trained, gentle horse, which she had many times prior to that date driven in and about the town of RoyM Center with safety; that upon, to wit, said November 18, 1901, there was, and had been for more than thirty days, at a point on said street, opposite to an electric light
The complaint, however, sufficiently shows notice to the appellant of the presence in the street of the obstruction which frightened the horse and by reason of which the horse became unmanageable, ran away, and threw appellee out of her buggy.
In the complaint before us it is alleged that the horse which took fright was a well-trained and gentle horse, and that the object at which it took fright was calculated to frighten horses driven on and along the street, that the appellee had no knowledge or notice that there was anything in the street calculated to frighten an ordinarily gentle horse; but it is not alleged that the obstruction in question was calculated to frighten ordinarily gentle horses. It is well known- that horses, whether vicious or gentle, sometimes take fright at objects upon or adjoining the roadway for whose presence there no blame can be attributed to anyone. Instances will readily occur to the mind. If the cause of the fright and the consequent injury is in truth the inherent faultiness of the horse, there can be no recovery. If, though the horse be ordinarily roadworthy, it take fright at an object which could not be regarded by a person of ordinary skill and prudence as calculated to frighten an ordinarily roadworthy, horse, there would be no responsibility on the part of the municipal corporation. It is not enough; then, that the horse which becomes frightened be an ordinarily gentle horse, but the object by which it is frightened must be one calculated to frighten an ordinarily gentle horse. An averment that the object was one adapted to frighten an ordinarily gentle or roadworthy horse can not properly, we think, be said to be one made for the purpose of showing the absence of contributory negligence on the part of the driver of the animal, but it is proper for the purpose of showing the negligence of the defendant by characterizing the object as one for the consequence of
In Cleveland v. City of Bangor (1895), 87 Me. 259, 32 Atl. 892, 47 Am. St. 326, it is said: “Whether the fright of the horse at the electric car shall be deemed the true and real cause of the accident, or only a circumstance which permitted it to happen, must depend upon the character of tjhe horse and the extent of his misconduct. If the horse was not reasonably gentle and safe and became entirely unmanageable from fright, substantially freeing himself from the control of the driver, and the accident resulted from such a want of control, then the fright of the horse might be regarded as one of the proximate causes of the accident. If, however, the horse was ordinarily safe and reasonably suitable for use on the public street, and, while being properly driven, started and shied at the sudden appearance of the electric car around the curve, swerving but a few feet from the line of travel, and through only a momentary loss of control by the driver brought the carriage in contact with the pole in the street, in such case the conduct of the horse could not in reason and justice he considered as causing the accident.”
In Mallory v. Griffey (1877), 85 Pa. St. 275, it was said: “It was claimed that the stone was an object calculated to frighten an ordinarily quiet and well-trained horse, and that the defendant was chargeable with negligence in leaving it on the highway. This presented a question of fact, which was properly submitted to the jury, with the instruction that the plaintiffs could not recover, unless they found ‘from the evidence that a stone or rock, such as was placed in or near the road by the defendant, was, in and of itself, an object calculated to frighten an ordinarily quiet and well-broken horse.’ If this had been the only question of fact to be found by the jury, the verdict would have been conclusive of the plaintiffs’ right to recover; but the question of contributory negligence, raised by the defendant’s fourth point, was- also submitted. Both of these questions
In Piollet v. Simmers (1884), 106 Pa. St. 95, 51 Am. Rep. 496, the correct rule was said to be, that a property owner who has a lawful right to expose an object on or along a public highway, within view of passing horses, for a temporary purpose, is bound only to take care that it shall not be calculated to frighten ordinarily gentle and well-trained horses; and thát this seems to be the tenor of the authorities in the cases in which there has been a judicial expression on the subject. After a reference to a number of authorities it was said: ''It seems to us it would be difficult to state a rational rule on this subject unless it is accompanied with this limitation.”
In Elliott, Roads and Sts. (2d ed.), §616, it is said, that whether the object is in its nature calculated to frighten horses of ordinary gentleness is usually a question for the jury to determine from a consideration of its character, situation, the amount of travel on the highway, and other like circumstances; and in a note to that section it is said, that Cleveland, etc., R. Co. v. Wynant (1887), 114 Ind. 525, 5 Am. St. 644, can not be taken as expressive of a universal rule, and ought not to be regarded as going further than that there are some objects which may be declared, as matter of law, not likely to frighten well-broken horses.
There being in that case an objection urged to the complaint, that these facts were not sufficiently made to appear by its averments, it was said by the court that the complaint was not as definite and specific as the rules of good pleading would require, and that if the question' were upon the overruling of a motion to have it made more certain and specific, the court would feel constrained to reverse the judgment; and the case was treated as one in which the averments of the complaint “in regard to negligence” were not sufficiently clear and specific, an objection to be reached by motion. The court thought that the general averment in the complaint before the court, that the injury was not caused by any negligence or carelessness on the part of the plaintiff, but was caused wholly by the negligence of the town in permitting the person to maintain and carry on the business of making candy on the street, made the complaint good against demurrer. While there may be found in our reports precedents which would seem to favor the view that such an averment concerning the object which caused the fright of the animal may be dispensed with, the distinct question not appearing to have been presented to the court, and expressions of like tendency made when the sufficiency of a complaint was not in question, yet the principles involved in such actions, as recognized and expressed here and in other jurisdictions generally, considered with our system of pleading, which makes it obligatory upon the plaintiff to state directly the facts constituting his cause of action, would seem to indicate at least that a complaint which neither contains such an averment nor charges negligence of the defendant can not be held sufficient on demurrer.
Judgment reversed, with instruction to sustain the demurrer to the amended complaint.