Louisville & Nashville Railroad v. Vanzant

DENSON, -T. The plaintiff claims damages from the defendant for personal injuries suffered by plaintiff, consequent upon the alleged negligence of defendant’s servants in placing a hand car in a public highway near defendant's railroad track thereby causing plaintiff’s horse to become frightened and to jump, throwing plaintiff from his buggy and inflicting serious personal inju [530] ries upon him. The complaint is attacked by demurrer, upon the ground that it fails to aver that the car was an object calculated to frighten horses. Whether or not the complaint is subject to this demurrer depends upon what, according to its averments, constitutes the cause of action. The theory of construction out of which the demurrer grows is that the complaint alleged that plaintiff’s injury arose from the fright of the horse as its proximate cause. Whereas the construction contended for by the plaintiff is that, the complaint sIioavs that the placing of the car in the highway constituted a public nuisance per se, that this Avas unlawful and wrongful, and the complaint counts for recovery on this wrongful act of the defendant as the proximate cause of the injury. There can lx1 no doubt that plaintiff’s contention should be alloAved to priwail,. and the authorities relied on by him Avould be in point, if the cause of action had been that plaintiff’s horse stumbled over the obstruction in the hig'lnvay and thereby caused plaintiff’s injuries or that the buggy came in contact Avith the obstruction, causing plaintiff to be thrown from the buggy, and thereby to sustain the injuries complained of. But these are not the averments. They are: “Plaintiff avers that it became necessary to pass said hand car, and in attempting to pass said hand car in said public road, which Avas on said fill or embankment, his horse became, frightened at it, and shied theireat, so that, in passing it the rear wheel of his buggy struck the hand car, which contained some tools and dinner buckets, and thereby made a lot of unusual noise, Avhich frightened the horse more. The said horse then jumped, throAving plaintiff from the buggy, inflicting very painful wounds,” etc. So far as the complaint shows, there was ample space left for plaintiff’s vehicle to pass safely AAchile the car was in the road; and if we might look to the evidence in this re [531] spect we would see that the plaintiff had very recently, before the accident occurred, passed along while the car was in the road, and that it was on his return trip . that the horse became frightened and caused his injury. The case, in regard to the question under discussion, is in legal contemplation not distinguishable from that of Northern Alabama Railway v. Sides, 122 Ala. 594, 26 South. 116, and on the authority of that case, as well as upon the foregoing considerations, the court is of the opinion that the cause of action counted on in the complaint arose from the fright of the horse; and as we can not judicially know that the hand car was an object calculated to frighten horses, it should have been averred in the complaint. For the lack of such averment the demurrer should have been sustained. — Northern Alabama Railway Co. v. Sides, supra ; Elliott on Roads & Streets, 448, 449; Cleveland, etc., Co. v. Wynant, 114 Ind. 525, 17 N. E. 118, 5 Am. St. Rep. 644, 649; Ayer v. City of Corruna, 55 Mich. 428, 21 N. W. 873, 54 Am. Rep. 383; Piollet v. Simmers, 106 Pa. 95, 51 Am. Rep. 496; Ayer v. City of Norwich, 39 Conn. 376, 12 Am. Rep. 396; Pittsburg, etc., Co. v. Taylor, 104 Pa. 306, 49 Am. Rep. 580; Cairncross v. Village 78 Wis. 66, 47 N. W. 13, 10 L. R. A. 473; Card v. Cit of Ellsworth, 65 Me. 46, 44 Atl. 127, 47 L. R. A. 752. In view of the foregoing considerations, it is unnecessary to discuss the rulings of the court on the demurrers to the defendant’s pleas or its rulings on the admissibility of evidence. The facts averred in the complaint show, with sufficient certainty to warrant the legal conclusion, that the fright of the horse and the consequent injuries were due to the. acts of defendant’s servants; hence the other grounds of demurrer to the complaint were properly overruled. [532] For the error pointed out, the judgment is reversed, and the cause remanded. Reversed and remanded. Simpson, Andiskson, and McClellan. TJ., concur.