Action by appellant for damages because of injuries suffered by appellant resulting from the negligence of appellee. There were two paragraphs of complaint. It is averred in the first paragraph of complaint that on January 8, 1926, appellee operated a railway through the city of Knightstown, Indiana, in an east and west direction, and that it carried United States mail on its trains through said city. Appellee had constructed, on the south side of its road in said city, a receiving pen to catch the mail thrown from fast moving trains. Such pen was constructed by appellee on the south side of its road and near a public street, running north and south through said city. Appellant's train ran over said highway on an overhead bridge which was 18 to 20 feet high. Said pen was negligently constructed, with the east end thereof about 50 to 75 feet from the highway where it passed under said overhead bridge. It was the custom of the mail clerks on appellee's mail trains to throw mail sacks off of such trains into the receiving pens while the train was running at a rate of speed of from 60 to 70 miles per hour, which custom was within the knowledge and consent of, acquiesced in, and approved by appellee. The mail sacks weighed from 100 to 200 pounds and would strike the ground and then bound from 50 to 75 feet. Appellee well knew this fact. Appellee negligently constructed the east end of said receiving pen 20 to 30 inches in height and the mail sacks, when they struck the ground inside the said pen, would bounce over the fence from said pen, and into the *Page 22 public highway, falling on the south side of the overhead bridge, and thereby endanger the lives and limbs of travelers on said highway. Appellee had knowledge of this condition and permitted the mail clerks to throw the mail sacks from the train while the train was moving at a high rate of speed, well knowing that the mail sacks were likely to bound over the east end of the receiving pen, or the momentum of the mail sacks would carry them beyond the receiving pen, and into the public highway. On January 8, 1926, appellant was driving a gentle horse hitched to a wagon, under the bridge and on the highway, and he was at the time sitting in the wagon on a high seat, and while so doing and just as he emerged from the south side of the overhead bridge, a mail clerk on one of appellee's trains threw a mail sack off of the train into or east of the receiving pen near the east end thereof, and the mail sack struck the ground and bounded into the highway, and fell upon appellant, and knocked him out of the wagon onto the ground and injured him. Appellee was guilty of negligence aforesaid in that it constructed the east end of the receiving pen too near the highway, and that it negligently constructed the east end of such pen too low, and that it negligently ran its trains 60 to 70 miles per hour past said receiving pen, and that it negligently permitted the mail clerks upon said train to throw the mail sack off thereof while the train was running from 60 to 70 miles per hour, and by reason of such negligence, the mail sack bounded into the highway and injured appellant.
The second paragraph of complaint avers the same general facts as the first paragraph, and then charges that by reason of appellee's negligence in permitting and acquiescing in the dangerous conduct and acts of the mail clerks on its train, in so ejecting said mail pouch, and by reason of appellee's negligence in failing to stop and prohibit such custom and practice of said mail *Page 23 clerks, appellant was injured as a proximate result of each and every act of appellee's said negligence. There is a demand for damages in the sum of $25,000. Answer in denial. The cause was submitted to a jury for trial which resulted in a verdict for appellee on which the court rendered judgment. From this judgment, after appellant's motion for a new trial was overruled, this appeal was taken, appellant assigning as error the action of the court in overruling his motion for a new trial under which he presents error of the court in giving each of certain instructions, and in refusing to give each of certain other instructions tendered by appellant.
As appears above there were four acts of negligence charged in the first paragraph of complaint, but by Instruction 16, given by the court on its own motion, it eliminated two of these 1. acts therefrom. Further, this instruction told the jury that appellant must prove all the acts of negligence charged in this paragraph before he could recover. This was a wrong statement of the law. Appellant would be entitled to recover if he proved any one of the alleged negligent acts averred, if such negligent act proximately caused the injuries complained of. Lathrop v. Frank Bird Co. (1924),81 Ind. App. 549, 552, 142 N.E. 868; Chicago, etc., R. Co. v. Barnes (1905), 164 Ind. 143, 149, 73 N.E. 91.
This principle was involved in Instructions 5 and 12, given by the court on its own motion, and in Instruction 4 tendered by appellant, and refused, and so far as the court's action in giving or refusing these instructions, or otherwise, was contrary to such principle, it was error, but as hereinafter appears, it was harmless.
Appellant complains of Instruction 18, tendered by appellee and given by the court. This instruction informed the jury that the mail clerk who threw the mail sack in question, was not an employee of the railroad *Page 24 company, and was not under the supervision of said company, 2. and therefore, even though he was negligent in throwing the mail sack which struck appellant, appellee would not be liable therefor unless the negligent act of said mail clerk in so throwing said mail sack into Franklin Street had been repeated so many times and at such regular intervals, and with such continuing regularity as to constitute a habit, custom or practice, and unless such habit, custom or practice was known to appellee, permitted by it, acquiesced in, and appellee consented to the continuance of such habit, custom or practice. As it seems to the court, the principle involved in this instruction is in substantial agreement with that announced in Pittsburgh, etc.,R. Co. v. Warrum (1908), 42 Ind. App. 179, 82 N.E. 934, 84 N.E. 356. While there is no averment in either paragraph of the complaint that the mail sack was thrown into Franklin Street, but that it was thrown into the receiving pen or east of it, and then bounded into Franklin Street, there was evidence that the mail sack was, at divers times, thrown into Franklin Street, and the undisputed evidence, given by appellant's witness, is that the mail sack that injured appellant was thrown from the car door directly into Franklin Street, and unless such act had been repeated so often as to become a custom or habit, and known to and acquiesced in by appellee, as charged in the instruction, there could be no recovery because of such negligence of the mail clerk. There was no error in giving instruction number 18.
If the mail sack that injured appellant was thrown directly into Franklin Street, then the fact that the receiving pen was not built high enough, or that it was too close to the 3, 4. highway, or that the train was running so fast under the circumstances as to have caused the mail sack, had it been thrown into the pen, or to the east of it, to bound into Franklin Street, *Page 25 could not have been the proximate cause of the injury. With these three respective acts of negligence eliminated by the undisputed evidence, it necessarily follows that the court's action with reference to instructions 16, 5, 12 and 4 considered above, though erroneous, was harmless. We find no reversible error.
Judgment affirmed.