144 N.E. 646 | Ind. Ct. App. | 1924
Action by appellees against appellant to recover damages for injuries to their property by fires, alleged to have been communicated thereto from the latter's locomotive engines. The complaint is in two paragraphs, one being based on a fire occurring on June 27, 1921, and the other being based on a fire occurring on July 18, 1921. The answer is a general denial. The cause was submitted to a jury for trial, resulting in a verdict in favor of appellees, and the return of its answers to certain interrogatories. Judgment was rendered in favor of appellees on the verdict. Appellant filed a motion for a new trial, which was overruled, and this action of the court is made the basis of the only error assigned on appeal.
Appellant contends that the verdict is not sustained by the evidence, and, in support thereof, relies in part on the answers of the jury to certain interrogatories. Appellees contend 1. that no question, based on such answers, is available to appellant *269
because of its failure to move for judgment in its favor on such answers notwithstanding the general verdict. Appellees are in error in making this contention, as such answers may not only be used as the basis for a judgment non obstante, but also in determining the sufficiency of the evidence, as well as in curing intervening errors. Barr v. Sumner (1915),
Appellant calls our attention to the answers to interrogatories Nos. 8, 9 and 11 in support of its contention that the verdict is not sustained by the evidence. By the first two answers 2-4. mentioned, it is found, in substance, that the fires in question were caused from sparks thrown by appellant's railroad engines. There is nothing in these answers, or either of them, which gives support to appellant's contention. The answer to interrogatory No. 11 calls for a statement of the evidence other than the passing of the engines near the time of the fires in question that shows that they were caused by appellant. This is not a proper interrogatory and should not have been submitted, but having been submitted, its answer should be treated as surplusage. Louisville, etc., R. Co. v. Hubbard (1888),
Appellant insists that there is a total absence of any evidence to establish the fact, essential to appellee's right of recovery, that appellant caused the fires in question. It may be 5. conceded that there is an absence of any direct evidence establishing such fact, but direct evidence is not essential. It suffices if the evidence establishes facts and circumstances warranting an inference that such fires originated from the locomotive engines of appellant that passed near where the same were first seen, a short time before each of them occurred. Pittsburgh, etc., R. Co. v. Indiana, etc., Co.
(1900),
Contention is made that the court erred in permitting the witness, Barger, to testify that, in the months of June and July, 1921, he noticed sparks coming from appellant's engines as 6. they passed by appellees' premises. The objection thereto offered in the trial court was, that it called for the conduct of appellant in the management of its trains at a time other than that alleged in the complaint. As the particular engines which it is claimed set fire to appellees' property were not identified by number or otherwise, it was proper for appellees to prove that appellant's engines generally, or many of them, during the months in which the fires in question occurred, emitted sparks in passing their premises, as a circumstance to be considered by the jury, in connection with others, in determining the origin of the fires in question. Evansville, etc., R. Co.
v. Keith (1893),
Contention is also made that the court erred in refusing to give instruction No. 2, tendered by appellant. The gist of this instruction is that no presumption arises that the fires in 7. question were started by appellant, from the mere fact of the passing of its trains just prior thereto. We are of the opinion that no reversible error is shown in the refusal to give this instruction, as the jury was informed by an instruction given that the burden of establishing the material fact that the fires were started by appellant was on appellees, and that, unless such fact was established by a fair preponderance of the evidence, they should find for appellant. The effect of this instruction was to inform the jury that no presumption as to the origin of the fires arose from the mere passing of appellant's trains just prior thereto, but that the fact as to such origin was a matter to be proved. We conclude appellant *272 was not harmed by the court's refusal to give said instruction.
Appellant has sought to challenge the amount of the verdict by alleging in its motion for a new trial that the damages assessed by the jury are excessive. Section 585 Burns 1914, states 8. eight grounds for a new trial, excessive damages being the fourth. The fifth ground is as follows: "Error in the assessment of the amount of recovery, whether too large or too small where the action is upon a contract or for the injury ordetention of property." (Our italics.) It will be observed that this is an action falling under that portion of the provision which we have italicised, and hence an allegation in the motion for a new trial that the damages assessed by the jury are excessive presents no question. City of Indianapolis v.Woessner (1913),
Failing to find any sufficient reason for holding that the court erred in overruling appellant's motion for a new trial, the judgment is affirmed.
