Cleghorn v. Western Railway , 134 Ala. 601 ( 1902 )

McCLELLAN, C. J.

Mail cranes at flag stations are necessary to the business of railway companies carrying the mails; but it cannot be said to be. necessary for such companies, to erect such cranes in or so near to. public roads crossing their tracks as that the cranes or their use would obstruct the use of highways by the public. To the contrary in such erections, as' well as all others, railways must have due regard to the rights of the public in adjacent highways, and it, failing in such regard, a crane is erected in or so near to a public road that- a traveler without contributing fault on his part sustains injuries by reason of its location', the railway is liable to him in damages, as it would be for any other unneces-. sary and wrongful obstruction of the highway. If it may be said that a mail crane is in itself a structure of such ungainly (not to say hideous) mien, as to be calculated to frighten a horse of ordinary gentleness, and one is erected immediately upon the side of a public road and such a horse, in being driven by, becomes frightened and' unmanageable and hurts his- driver, the latter has his action on the case against the railway company.

But suppose such crane, so located, in and of its naked self is not calculated to frighten gentle horses-, but becomes an object of terror to them — a scare-crow or, more accurately, a scare-horse — when a mail bag is suspended upon it, and in conjunction with such bag, and that while the crane is thus being put to its intended uses, a horse of ordinary gentleness is driven along the road and becomes frightened a,t the crane and its burden, and runs away -or springs aside, or backs into a ditch, and hurts the driver, in such case; can the driver recover against the railway company as upon negligence for erecting and having the crane so near to the highway, 'contemplating and intending this- terrifying use of it? In determining this question it is to he assumed and borne in mind that damages- are not claimed for the; act of putting the bag on the crane, and that the hag is in fact strung onto the crane, not by the railway but, presumably, by an employe of the postal service. But it is also not to be lost sight of that it is the railway company whose business it is to get that hag at that station and carry it forward, that the postal department .of the government is not concerned as to how the carrier gets the hag, but only that the bag is got by it and carried, that the crane is erected by the company to facilitate the accomplishment of a diuty and obligation resting on it, and that the government puts the bag on the crane to the end that the railway company may discharge its duty with the greatest ease to itself by taking the bag on without stopping its train. The question thus presented is one of some nicety and. difficulty. It is, moreover, res integra, so far as we are advised. Our opinion upon it, however, is that the railway company would be liable. By the erection of the crane for its own purpose of having mail bags strung upon it, the company assumes responsibility for injuries resulting from the structure while and in consequence of its being in the use intended, if it has been guilty of negligence in erecting ’the crane too near a public road, and the crane wit-hits burden is an object calculated to frighten gentle horses. In such case the negligent erection of the crane, in the contemplation and with the intention that it shall be used by others for the benefit of the company in a way which is calculated to frighten domestic animals and cause them to injure their owners, is the efficient and proximate cause of an injury resulting from the position and intended use of the crane. Haying ip mind the purposes of the erection and the fact that it will inevitably be put to* the intended uses, there is, we think, an unbroken chain of causation from the erection of the crane at the side of a highway and the fright of a passing horse produced by the presence there of the crane with the mail bag upon it. The complaint in this case malees a case under these views of the law, and the court erred in sustaining the demurrer to it.

We may not be impressed with the notion that such a structure with a mail bag on it is calculated! to disturb the equanimity and frighten a horse of ordinary gentleness; but it is alleged to be in this complaint, and that question-is one for the jury.

The judgment for the defendant must be reversed as also the judgment sustaining the demurrer to the complaint as amended. A judgment will be here entered overruling the demurrer and remanding the cause.

Reversed, rendered and remanded.