58 Ind. App. 171 | Ind. Ct. App. | 1914
This action was brought by appellee to recover the value of a team of mules and a set of harness destroyed by fire in the barns of appellant in the city of Indianapolis. There was a verdict and judgment in favor of appellee. The first error assigned and relied on for reversal is, that the trial court erred in overruling appellant’s demurrer to the complaint.
The complaint shows that appellant is a corporation and that, as such, it owns and operates stockyards in the city of Indianapolis. In connection with its stockyards, it is alleged that it owned and operated stables in which the teams and harness of stockmen and farmers, bringing stock to the yards for sale, were kept over night for hire. It further appears from the complaint that appellee on December 15,
occurrence of the fire, or that the fire resulted from any fault or negligence on the part of appellant, but it proceeds on the theory that it did not exercise the care dictated by ordinary prudence in making provisions for the prompt discovery of fire,, and the rescue and preservation of property in case a fire occurred. The negligence charged is that appellant negligently locked the door of the -barn in which appellee’s mules and harness were kept, and negligently failed to leave any one in charge of the same, or to give notice in case of fire. It is further alleged that the fire broke out about three or four o’clock in the morning of December 16, 1908, at some distance from the stalls in which appellee’s mules were stabled; that appellee was notified of the fire, and that he went to the stablesi for the purpose of rescuing his property; that when he arrived the fire had not yet reached that part of the stables where his property 'was located, and that he would have had time to rescue it if he could have gained admission to the bam, but that on account of the doors being locked, and no one being present in charge he was unable to gain admission to the barn, and in consequence his property was totally destroyed by fire. The allegations on the subject of negligence seem to be sufficient. The charge that a defendant negligently omitted an act, amounts to a charge that ordinary care required the performance of such act, and that the defendant failed to use ordinary care in that particular. If the conditions and circumstances were of such a character that a person of ordinary prudence ought to have foreseen the danger from fire, and, if ordinary care under the circumstances required that appellant should keep a
As a matter of pleading, it is not necessary to state all of the conditions and all of the circumstances which may be taken into consideration in determining whether ordinary care required appellant to foresee and provide against the danger of fire in the manner charged in the complaint. Where an act is alleged to have been negligently done or negligently omitted, the conditions and circumstances under which it was done or omitted are not necessary in a pleading for the reason that it is not the province of the court to judge from such conditions and circumstances whether ordinary care required the act to be done or omitted. That is the peculiar province of the jury. The duty to use care in favor of appellee being shown, it is sufficient to charge that the acts or omissions specified were negligently done or omitted. The general duty to use care in favor of the plaintiff which arises as a matter of law from the relation between the parties as shown by the complaint is broad enough and comprehensive enough to include every specific act that ordinary care requires in the discharge of such duty. When the gem eral duty to use care is shown an allegation that ordinary care required the performance of a particular act is sufficient to bring such act within the scope of the general duty imposed by law. An allegation that an act. was negligently done or negligently omitted is equivalent to an allegation that the defendant failed to exercise ordinary care in the discharge of this duty. Opinion on petition for rehearing in Tippecanoe Loan, etc., Co. v. Pittsburgh, etc., R. Co. (1915), 57 Ind. App. 655, 106 N. E. 739. Under such allegation, evidence may be introduced to show all of the conditions which
The negligence charged in the complaint is not supported by the evidence and the trial court should have granted a new trial on that ground. The judgment is reversed with directions to grant a new trial.
Note. — Reported in 106 N. E. 742. For presumption and burden of proof as to care or negligence in respect to subject of bailment,