Railroad Co. v. Lowe.

Indianapolis, Ind., one division of which was operated and maintained upon Massachusetts avenue, extending northeast and southwest through the northern part of said city; that said avenue was at the time of the performance of the negligent act complained of, and for 20 years prior thereto, one of the most traveled thoroughfares for buggies, carriages and other conveyances and vehicles in said city; that horses and conveyances were constantly and continually passing and repassing through said street or avenue; that appellant had constructed and maintained in said street at said time a double track, covering the entire center part of said street, the width or space occupied by said tracks being equal to or greater than the space between said tracks and the sidewalk along said avenue; that said double tracks extended from between and beyond Delaware street, on the southwest, and East street, on the northeast, said last named street extending north and south through said city; that appellant had constructed its said double tracks or rails so that the inner flange or projection of the same was flat, and about three inches in width, said rails being specially convenient for the easy and comfortable passage of carriages, buggies and other conveyances, and prepared and constructed as aforesaid to facilitate travel thereon; that the distance between the rails on each track was about the width of an ordinary conveyance, and the general public had for about 20 years, in passing over and upon said avenue, driven their vehicles and conveyances upon the rails of said tracks, with the knowledge, consent and permission of the appellant; that at the time mentioned, by reason of the condition of said avenue between said tracks and the sidewalks along said avenue on either or both sides of said tracks, and extending from and between said Delaware and East streets, said avenue was not in a condition to be used, and was not used, by the traveling public; that said avenue, between the last named streets, except the space occupied by the tracks, was torn

Railroad Co. v. Lowe.

up, rough and uneven, and unfit and dangerous for travel, and had been abandoned by the general public as a highway for the time being, owing to the excavations made therein by said city preparatory to improving the same; that said tracks of appellant were used by the traveling public in passing to and fro in buggies, carriages and other conveyances from the central part of the city to the north and southeast part thereof, and were the sole and only driveway between said Delaware and East streets along said avenue, and that the public generally used said tracks continuously as a driveway, with the knowledge, consent and permission of the appellant; that the street known as New Jersey street extends north and south, and the street known as Michigan street extends east and west, through said city, and meet and intersect each other at an angle of 90 degrees at a point one square west of where said East street meets and intersects said avenue; that at the crossing of Michigan and New Jersey streets, aforesaid, there was placed an obstruction or fence across said streets to prevent any person from driving on to said avenue from either side thereof, off either of the last above named streets; that said obstruction or fence had stood in the position and for the purpose aforesaid continuously and uninterruptedly for at least two weeks, and stood in said position and place at the time of the occurrence of the accident and injury hereinafter related; and that at that time the facts already recited were well known to the appellant. Appellee further alleges that on the 20th day of July, 1892, his little son and servant, Frank P. Lowe, a boy 11 years old, of bright mind and intelligence, and of a strong and healthy constitution, without fault or negli gence on the part of appellee, or said Frank's mother, or said Frank himself, and without fault or negligence on the part of those in whose care and custody he was left by the appellee, came up said Massachusetts avenue at said East street, and, without fault or negligence on the part of any

Railroad Co. v. Lowe.

of the above-named persons, were riding in an open vehicle. or conveyance, drawn by a gentle and trusty horse, southwest on said avenue, and was upon the north track of appellant's said railroad, approaching one of the appellant's cars, with due care and caution, upon the opposite or south track of said railroad, said car being drawn and propelled at the time with electricity as a motor power, and said car was approaching appellee's said son Frank; that said Frank was approaching from the northeast the aforesaid crossing, at the intersection of New Jersey and Michigan streets with said avenue, with due care and caution, at the time appellant's said cars were approaching said crossing from the southwest; that appellant's said cars were then under the exclusive control and management of appellant's servants and employes while approaching said crossing as aforesaid, and when the injury to appellee's said son Frank occurred, as hereafter complained of," and said cars were being negligently run and managed by said defendant's servant, and, by reason of the negligent management of said defendant's car as aforesaid, the horse attached to the vehicle in which the said Frank was riding became frightened and unmanageable, as aforesaid, and was in plain view of said car, and said defendant could see and observe the condition of said horse and the peril of said Frank for a long distance from said car and in front of the same, to wit, three hundred feet, and while the said horse was in the frightened and unmanageable condition, as aforesaid, defendants did negligently approach said horse, thereby so frightening said horse that it turned to the left, and across the track upon which the said car was negligently approaching, and defendant negligently ran said car against the wagon in which said Frank was riding," etc. The remaining portion of the complaint relates to the injury inflicted and the damages sustained.

Railroad Co. v. Lowe.

[The portion of the opinion here omitted relates to the sufficiency of the complaint to avoid a demurrer.]

In the case at bar the gist of the action is negligence in running the appellant's car against the vehicle while it and the horse attached to it were on the track in front of the car, and in a condition of great peril to the occupants of the vehicle, which must, by the exercise of reasonable diligence, have been known to the appellant's servant operating the car. Ordinarily, it is true a motorman operating an electric car, who sees a horse and vehicle approaching, has a right to assume that the driver will not attempt to cross the track in front of the moving car, or otherwise come so near as to cause a collision, but rather that he will avoid the same. But when the motorman or those in charge of the car see the frightened horse and the vehicle to which he is attached in front of such car, upon the same track, and that the occupants of the conveyance are in apparent peril, due care requires that the car be stopped if it is possible to do so. In such a case it requires of those in charge of the motor to slacken the speed, and, if necessary to avoid injury, to stop the car entirely. Railway Co. v. Maynard, 5 Ind. App. 372; Ellis v. Lynn & Boston Railroad Co. (Mass.), 160 Mass. 341; Benjamin v. Holyoke St. Railway Co., id. 3; Railroad Co. v. Carr (Ind. App.), 37 N. E. Rep. 952. We think the averment that the appellant negligently ran the car against the wagon is a sufficient averment of negligence when construed in connection with the other averments in the complaint.

The only remaining assignment of error calls in question the sufficiency of the evidence to support the verdict of the jury. There was evidence tending to prove all the averments of the complaint. Appellant's counsel contends that the evidence does not tend to show that the horse was on the track in front of the car until just a moment before the car ran against the wagon. But we interpret the evi

Wilde v. Railroad Co.

due care to the jury. We are of opinion that this question was properly submitted to the jury.

The defendant, in effect, concedes that the course pursued by the court below would have been correct if the plaintiff had been riding upon a horse car instead of upon an electric car. Meesel v. Railroad, 8 Allen, 234; Wilton v. Middlesex Railroad, 107 Mass. 108; Maguire v. Middlesex Railroad, 115 Mass. 239; Fleck v. Union Railway, 134 Mass. 480; Lapointe v. Middlesex Railroad Co., 144 Mass. 18; Railway Co. v. Walling, 97 Pa. St. 55. It is contended, however, that as electric cars run at so much higher a rate of speed than horse cars, and as it is much more dangerous to ride upon the platforms or steps of the latter class than upon those of the former class, a different rule of law should be applied. It is, however, to be remembered that the defendant allowed the car to be very crowded, and that the plaintiff rode where he did without any objection on the part of those having charge of the car. Being received as a passenger, riding as he did, we cannot say, as matter of law, that because he did not crowd upon the platform he was precluded from recovering. Pray v. Railway, 44 Neb. 167.

Exceptions overruled.

NOTE.-See note to McGrath v. Brooklyn, etc., R. Co., post.