Lake Erie & Western Railroad v. Lowder

On Petition fob, a Reheabing.

Davis, J.

Counsel for appellant earnestly urge that the petition for rehearing filed herein sho'uld be granted. It is insisted that the court has failed to state any reason why the authorities cited in the original opinion support the complaint, or wherein the authorities cited by appellant in support of the position that the alleged injury was the result of unavoidable accident are not applicable, and, further, that the court erred in holding that the complaint states facts sufficient to constitute a cause of action. At the risk of being prolix, but avoiding repetition so far as possible, we will again, and more in detail, review the question presented and the authorities cited.

In support of the proposition that the averments in the complaint show that the injuries in question were, under the authorities, the result purely of accident, counsel for appellant cited in one of their briefs on the original hearing the following cases: Wabash, etc., R. W. Co. v. Locke, Admr., 112 Ind. 404; Brown v. Collins, 53 N. H. 442; Losee v. Buchanan, 10 Am. Rep. 623; Hoag v. Lake Shore, etc., R. R. Co., 85 Pa. St. 293; Bennett v. Ford, 47 Ind. 264; Baltimore, etc., R. R. Co. v. Rowan, 104 Ind. 88; Pennsylvania Co. v. Whitlock, 99 Ind. 16.

The general rule enunciated in the foregoing cases is that a railroad company engaged in operating its road in the usual course of business is not liable for damages done to the property of the adjoining land owner, on account of accidents which occur without fault or negligence on the part of the company.

*548In Wabash, etc., R. W. Co. v. Locke, Admr., supra, the principles of negligence are fully and ably discussed, and the doctrine is approved, that when one person is in such position with regard to another, that every one of ordinary prudence would recognize that if he did not use ordinary care and skill in his own conduct, he might cause injury to the person or property of the other a duty arises to use ordinary care and skill to avoid such danger.

In Hoag v. Lake Shore, etc., R. R. Co., supra, it is held that where an injury arose from negligence, the question of proximate cause is to be decided by the jury upon all the facts of the case, but where the facts are undisputed and the intervening agency is manifest, the question is one for the court, and that in determining what is proximate cause the true rule is that the injury must be the natural and probable consequence of the negligence, such consequence, as under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act.

Conceding that the law is correctly stated in these cases, they do not sustain appellant’s contention in this case.

The demurrer to the complaint admits the acts of negligence on the part of the company, as charged in the complaint, and, also, the alleged consequences of such negligence. The facts stated in the complaint clearly show that the injuries to appellee’s property were the proximate result of the appellant’s negligence, and the consequences thereof, under the circumstances, were such as might have been foreseen by the company as likely to flow from the negligence alleged.

The cases cited in'the original opinion, as well as the authorities relied on by appellant, by reason and analogy, support the proposition that where a railroad company negligently and carelessly funs a heavy freight train, *549consisting, in part, of several cars of oil, over a defective and unsafe track, through a city, in the night, at a high and dangerous rate of speed, to wit, thirty-five miles an hour, in violation of an ordinance, it is guilty of a positive wrong, and not a mere passive negligence, and is liable for the loss sustained by the burning of the property of the adjacent land owner, occasioned through the wrecking of the train and the consequent flowing and burning of the oil, as the proximate and natural result of such negligence, under the circumstances alleged in the complaint. It was not necessary to aver in the complaint that after the wreck occurred, the company was then and there guilty of any other and additional act of negligence which caused the burning oil to run down hill onto appellee’s land. Nothing could have been done after the wreck occurred to prevent such a result. The immediate flowing of the burning oil onto and over appellee’s premises, and the consequent burning of her property, was, under the circumstances attending the disaster, inevitable. In other words, in conclusion on this subject, it will suffice to say that the wreck of the train, the ignition, explosion ’and burning of the oil, and the consequent destruction of appellee’s property, are shown, by the averments in the complaint, to have been the natural and proximate result of the negligence of appellant.

It is next insisted that what we have said in criticism of the instructions, and our conclusion .that the errors and inaccuracies referred to were uninfluential and harmless, is a radical departure from a long line of adjudicated cases in this State. In this contention counsel are mistaken. The rule referred to, and which we applied in this case, is correctly stated in section 648, Elliott’s App. Proced., and is fully supported by the authorities therein cited.

*550It is contended that the words used in the third instruction, relative to the degree of care imposed on appellant under certain circumstances, were such as required absolute perfection on the part of appellant in the maintenance, operation, and management of its property, and, therefore, that the instruction was radically wrong, and directed the minds of the jury to an improper basis on which to place their verdict. In determining the construction and effect that should have been, or was likely to be, given the objectionable language, the connection in which it was used, the facts and circumstances to which it referred, and the other instructions, as an entirety, should all be considered.

In this connection, we call attention to the fact that there seems to have been no dispute, on the trial, upon the subject that the track of appellant’s railroad was in a defective condition at the point where the wreck occurred. The theory of appellant was that such defect was caused by the act of vandals, for the purpose of wrecking another train on that night, and the theory of appellee was that such defect was the result of lack of care and attention on part of appellant. There was evidence tending to prove all the alleged acts of negligence mentioned in the complaint, although it was in some respects contradictory. It is not necessarily, perhaps, unless in violation of a statute or ordinance, an act of negligence to run a freight train, similar to the one in question, at a high rate of speed, in the night-time, through a populous city, but however this might be, it would, we apprehend, ordinarily be actionable negligence to so run such a train over a defective track. Certainly, therefore, under the circumstances disclosed in this case, the appellant, in the transportation through towns and cities, in the night-time, of heavy freight trains, consisting largely of tanks of oil, which, in the event of acci*551dent, were likely to take fire, explode, run on and over adjoining property, destroying the same and likely to endanger human life, should have used such a degree of care and diligence as was commensurate with the hazards of the undertaking.

Filed Sept. 22, 1893.

The instruction was not “fatally erroneous” or “radically wrong,” and, therefore, the authorities cited do not apply. Lower v. Franks, 115 Ind. 334; Rapp v. Kester, 125 Ind. 79.

A re-examination of the questions involved confirm our opinion that the record discloses no prejudicial error against appellant.

Petition for rehearing overruled.