90 Ind. 60 | Ind. | 1883
— The appellee sued the appellant for damages claimed to have been occasioned by the unlawful destruction of the property of the appellee by the appellant. The complaint contained two paragraphs. A demurrer was sustained to the second and overruled to the first.
It is alleged, in the first paragraph of the complaint, that the appellant owns and operates a railroad, extending from Indianapolis, Indiana, to Bloomington, Illinois; that in the month of August, 1881, the appellee had, stacked, with her consent, on the premises of Nancy Adamson, in Warren county, Indiana, adjoining the appellant’s right of way, ninety bushels of wheat in the straw, of the value of $95; that the appellant, during the time the appellee’s wheat was so stacked as aforesaid, negligently permitted dry grass, leaves and other combustible rubbish to gather upon its right of way adjoining the -premises whereon the plaintiff’s wheat was so stacked, and that through the fault and negligence of the appellant and its servants, in permitting such combustible rubbish to gather upon its right of way as aforesaid, and in failing to provide its locomotives, propelled by steam, with proper spark arresters, said rubbish was, during said month, set on fire by sparks escaping from the appellant’s locomotives, and that said fire was started through the fault and negligence of the appellant as aforesaid, and, without fault on the part of the appellee, escaped from the premises of the appellant and set fire to and destroyed the appellee’s wheat, to his damage $100.
The appellant, after its demurrer had been overruled, answered by a general denial. The cause was submitted to the court for trial. There was a finding for the appellee, upon which, over a motion for a new trial, judgment was rendered. The ruling of the court upon the demurrer to the first paragraph of the complaint is assigned as error.
The charge in the complaint is that the appellant negligently
In the case of Louisville, etc., R. W. Co. v. Krinning, 87 Ind. 351, it is not only averred in the complaint that the defendant negligently set fire to dry grass on its right of way, but “ carelessly and negligently suffered, allowed and permitted the said fire to spread from its right of way to adjoining lands, and thence to the lands of appellee.” This was sufficient, and there is nothing in the case inconsistent with the other cases upon the subject. There is no such averment in the complaint before us.
And in the case of Louisville, etc., R. W. Co. v. Hanmann, 87 Ind. 422, it is averred in the complaint, that “ the appellant.
We think the court erred in overruling the demurrer to the-first paragraph of the complaint.
Per Curiam. — It is ordered, upon the foregoing opinion, that the judgment below be reversed, at the costs of the appellee.