176 Ind. 621 | Ind. | 1911
This appeal is in an action for damages to personal property, occasioned by fire that originated on appellee's premises within the corporate limits of the city of Lebanon. The damages are alleged to have been aggravated by the negligence of appellant in delaying the city firemen in charge of the fire apparatus on the way to the scene of the fire, by obstructing, with one of its freight-trains, a street along which they had to pass.
Prom a verdict and judgment in favor of appellee for $2,500, this appeal is taken.
Appellant first relies on the action of the trial court in ovei'ruling its demurrer to the complaint.
The first objection to the complaint is that its allegations do not serve to show that obstructing the street leading to the scene of the fire was the proximate cause of appellee’s damages; that it appears from the facts alleged that the
After alleging the status of appellant as the owner and operator of the railroad and its location in the city of Lebanon, the fact of appellee’s ownership of the greenhouse and stock of flowers and plants, and its location in the city with reference to appellant’s railroad and the building in which the city firemen and apparatus were stationed, between which fire-house and appellee’s greenhouse the tracks of appellant intervened, the proper equipment of the city’s fire department with apparatus and men, and the existence of an adequate water system, with hydrants located conveniently to the greenhouse, and the necessity for the firemen to proceed to the fire on the street in question on the day of the occurrences complained of, the complaint further alleged that at about 7 o’clock p. m. a fire broke out in the boiler-room connected with the greenhouse, and an alarm of fire was immediately sent to the fire department; that the fire department at once proceeded to the fire by the nearest and most practicable route, wdiich lay along the street obstructed; that when the firemen and apparatus reached appellant’s tracks, they found the street closed by a freight-train standing across it, the train being composed of an engine and twenty-five ears, the engine being about forty feet west of the street crossing, and the train extending about a quarter of a mile east thereof; that the firemen notified appellant’s employes in charge of the train of the fire, and demanded that the obstruction be removed, so that they could proceed; that said employes saw, or in the exercise of ordinary care could have seen, that the train prevented the firemen from continuing their run to the fire, and they knew, or could have known, that the quickest way to clear the crossing was to back the train east of the crossing which it was alleged could have been done in less than two minutes, or that they could have uncoupled the train and cleared the
Appellant’s employes were bound to know that the obstruction of the street crossing by said train might work inconvenience, delay or positive harm and damage to some one in some matter connected with the proper use of the highway so obstructed, and the complaint adds to this, that they actually knew that a fire was raging beyond the tracks of the railroad, and that the firemen were on their way to the fire on the obstructed street, and were demanding that the obstruction be removed so that they might proceed. That some damage would occur, which the firemen, with the means at their command for stopping and controlling the fire, would have been able to prevent if undelayed by said train, the employes of appellant must have known. Damage would be the proximate result of the obstruction, and appellee was entitled to have determined as a question of fact to what extent the obstruction of the crossing proximately caused him injury. The facts alleged do not show, as a necessary inference, and therefore, as a matter of law, that the obstruction was not the proximate cause of damage to appellee.
In the case of Metallic, etc., Casting Co. v. Fitchburg R. Co. (3872), 309 Mass. 277, 32 Am. Rep. 689, it appeared that to obtain the only available supply of water to throw upon a burning building a line of hose was laid across a railroad track, and a train was run over it and severed it while the water was being applied to the fire. In an action by the owner of the building against the railroad company to recover consequential damages, it was contended, as in this case that no direct or immediate injury was occasioned to the plaintiff by the act of the defendant, but that the injury was occasioned by the fire directly and by the defendant, but remotely. In the opinion of the supreme court, holding the railroad company liable, it was said: “The law regards prac
In the ease of Kiernan v. Metropolitan Construction Co. (1898), 170 Mass. 378, 49 N. E. 648, the court held that a liability was incurred by a construction company doing public work in the streets which had taken possession of the only available fire hydrant in the vicinity of a fire, and whose employes objected to, and for a time prevented, the use of the hydrant by firemen called to extinguish the fire.
In the case of Little Rock Traction, etc., Co. v. McCaskill (1905), 75 Ark. 133, 86 S. W. 997, 112 Am. St. 48, 70 L. R. A. 680, a street-ear ran over and cut the hose through which firemen were throwing a stream of water upon a burning building, whereupon furniture contained therein, which otherwise could have been saved, was consumed for want of water to extinguish the fire, and it was held that the act of cutting the hose was to be regarded as the proximate cause of the loss of a part of the furniture.
The case of Houren v. Chicago, etc., R. Co. (1908), 236 Ill. 620, 86 N. E. 611, 20 L. R. A. (N. S.) 1110, 127 Am. St. 309, is very much like the one under consideration. In that case it appears that a train obstructed a street crossing, in violation of a statute, and firemen and fire fighting apparatus were thereby delayed in reaching a fire. It was held that the violation of the statute was negligence per se, and that such negligence was the proximate cause of damages to appellant by the spread of the .fire to his house. In the opinion of the court it is said: “It seems clear to us that if a prudent man of experience had reflected upon the probable consequences of entirely closing up this street in a great city he would have foreseen, first, that to so close the street would obstruct and delay public travel thereon; second, that among
The case of Mott v. Hudson River R. Co. (1863), 1 Rob. (N. Y.) 585, which is cited and relied on by counsel for appellant, is much like the cases which we have referred to at length. It was before three justices of the superior court of New York city, and a majority of these decided that damages caused by the spreading of a fire, in consequence of the defendant ’s negligently running over and cutting hose through which water was being thrown on the fire, whereby the only supply of water available was cut off, were too remote to sustain an action. The majority opinion is much weekened as authority by the clear opinion of the dissenting justice, and it seems wholly destroyed by the later contrary decision of the appellate division of the New York supreme court in the case of Phenix Ins. Co. v. New York, etc., R. Co., supra,
The case of Lebanon, etc., Tel. Co. v. Lanham Lumber Co.
The case before us may be near the verge of liability, but it is not outside, for there is here an act done which is unlawful, and from which some damage directly flowed to appellee.
It is next contended by counsel for appellant that the complaint is bad for a failure to negative contributory negligence on appellee’s part. The act of 1899 (Acts 1899 p. 58, §362 Burns 1908) did not change the rule that has long prevailed in this State, that in actions to recover damages to property, wrought by the negligence of another, the plaintiff must allege bis freedom from contributory negligence, either by direct averment or by facts from which the inference that he was free from contributory negligence must be drawn. There is in the complaint no direct averment that appellee was free from contributory negligence, and the facts alleged in the complaint do not compel any inference that appellee was free from any negligence that might have caused the fire, or contributed to the spread of it after it was started, or that he could not have saved goods by removing them. All the facts alleged may have been true, and yet appellee may have been guilty of contributory negligence. But the general averment, “that all of said damages, and the destruction of said greenhouse and contents, were the direct and proximate result of the carelessness and negligence of said defendant, as herein averred,” is relied on by counsel for appellee as being sufficient to rescue the pleading from
Both negligence on the part of appellant, which was effective in producing the damage to appellee, and freedom from negligence on the part of appellee, contributing thereto, were, under the rules of pleading in force in this State, necessary to be shown to make the complaint good as the statement of a cause of action. The general averment in the complaint just quoted must be taken to be the pleader’s conclusion from the facts specifically alleged. The facts specifically alleged warrant the conclusion that appellant’s negligence was potent in causing appellee’s damage, but they do not necessarily warrant the conclusion that appellee was free from negligence which contributed thereto, and therefore the latter conclusion cannot be said to be involved in this general averment. Wahl v. Shoulders (1896), 14 Ind. App. 665; Louisville, etc., R. Co. v. Schmidt (1886), 106 Ind. 73; Wabash, etc., R. Co. v. Johnson (1884), 96 Ind. 40; Wabash, etc., R. Co. v. Johnson (1884), 96 Ind. 44, 46; Pennsylvania Co. v. Gallentine (1881), 77 Ind. 322; Cincinnati, etc., St. R. Co. v. Klump (1906), 37 Ind. App. 660; Potter v. Fort Wayne, etc., Traction Co. (1909), 43 Ind. App. 427; Indianapolis St. R. Co. v. Robinson (1901), 157 Ind. 232; City of Logansport v. Kihm (1902), 159 Ind. 68, 71.
The complaint is bad as against a demurrer, because it does not negative contributory negligence, and the giving of this instruction was error.
Other questions raised are not likely to arise in another trial.
The judgment is reversed, with instructions to the lower court to sustain appellant’s demurrer to the complaint, and for further proceedings not inconsistent with this opinion.