McCerrin v. Alabama & Vicksburg Railway Co.

Campbell, Special Judge, delivered the opinion of the court. The -gist of the action, as set' forth in the declaration, is the rapid movement of the hand-car, at a speed of more than fifteen miles an hour, by a noisy and disorderly crew, and the sudden appearance of this car and crew from behind an obstruction of the view, near a crossing of the railroad by a public street on which the plaintiff was seeking to cross the railroad, which was calculated to frighten a more than ordinarily gentle horse, and did frighten plaintiff's horse, which ivas of that character, whereby she .was damaged. There is no averment that the speed of fifteen miles an hour, or more, was unusual or dangerous, or improper on any ground; or that the noise or disorder of the men on the hand-car was unusual, or such as would be calculated to frighten horses, but the averment is, that the speed, the motions of the men, the combined noise made by car and men, and the sudden appearance to view of the car, were calculated to, and did, frighten plaintiff’s very gentle horse. The combination is complained of as the cause of the injury to the plaintiff, by causing her horse to run away. The aggregation is charged as constituting the wrong of the defendant. If any of the constituents of this aggregation is j>er ne, in legal contemplation, negligence or wrong on the part of the defendant, the declaration must be held good. The law has no standard for the rate of speed of a hand-car, and has no rule as to noises produced by its operation, or made by those operating it; and as to the sudden appearance of car and crew (which, probably, was the real cause of the unfortunate fright of plaintiff’s horse), surely no blame can be imputed for that, which, it may be justly supposed, would have terrified the horse if the speed had been less and the noise of car and men less. True, the averment is that these things were all well calcu [1018] lated to frighten very gentle horses, but if the defendant, by its servants, did nothing unusual, and nothing which “ common prudence would condemn as being calculated to frighten teams passing that way,' ’ it is not liable. There are. many things in the unquestionably lawful operation of a railroad well calculated to frighten very gentle horses, and yet one who suffers from the fright of his horse cannot successfully complain of the loss sustained, unless it appears that the railroad company, by its servants, was guilty of wrong in the matter complained of. The declaration here seems to us to fall short of stating a cause of action by failing to aver that what is complained of was unusual, and such as common prudence would condemn as being-calculated to frighten horses. Railroad Co. v. Loree, 4 Neb., 446. The defendant had the right to operate its car in the usual and customary way, and at a safe rate of speed, but had no right to convert it needlessly into a terror-inspiring thing, and for such departure from propriety, would, undoubtedly, be liable in damages for any injury caused by this negligence to one free from fault; but rapidity of movement, noises and sudden appearances are common incidents of the operation of railroads, and one complaining of hurt from these causes must show clearly a departure by the defendant from custom and propriety to warrant recovery. That what is done is well calculated to frighten very gentle horses may consist with the lawful exercise of its rights by the defendant, which must be guilty of some wrong to incur liability, and, under the rule that allegations are to be construed most strongly against the pleader, it must not be left to inference that there was -wrong on the part of the defendant, but it must be-distinctly averred to withstand a demurrer. It is true that the declaration avers that the defendant “ carelessly, improperly and negligently operated its certain handcar,’’ but it states specifically what was done, and that the speed, the motions, the noise and sudden appearance to view were what constituted carelessness, impropriety and negligence [1019] in the opinion of the pleader, and we do not think that these things constitute negligence in themselves* singly or collectively, as applied to this case. The declaration shows that at the place of the accident there was, at the time, great noise and confusion on the track of the Illinois Central Railroad Company, near by, and strongly suggests that the regrettable mishap which occurred was the result of a combination of adverse circumstances, and scarcely traceable to any known wrong or negligence of the defendant. Affirmed.