39 Ind. App. 628 | Ind. Ct. App. | 1906
The appellee’s complaint was in one paragraph. He avers that he was the owner of a barn situated near the line of appellant’s railroad, and that it so negligently operated one of its engines that sparks of fire were thrown from said engine into or upon said barn, setting fire to and destroying it, to his damage. The averment of negligence is: “That said sparks of fire and burning cinders were emitted from said engine on the date aforesaid, either by the defective condition of said engine on the date aforesaid, or by the defective construction of said engine, or by the careless and negligent manner in which said engine was operated on said date by the defendant.” There was no motion to require the complaint to be made more specific, the issues were formed by a general denial, cause was submitted to the jury upon the theory, acquiesced in by all concerned, that the appellee might recover upon proof of the destruction of his building by fire from said locomotive and
Appellant’s motion for judgment on answers to interrogatories, notwithstanding the general verdict, was overruled, as was also its motion for a new trial. Judgment on the verdict was rendered May 6, 1904. Erom this judgment appellant prosecuted a term-time appeal, its bond being filed on May 20, and said cause being Mo. 5,397. On January 2, 1905, it filed its complaint in the circuit court, setting out therein the rendition of said judgment, and the pleadings and proceedings therein had, by which it is made to appear, among other things, that the material fact in issue was whether the barn was set on fire by sparks from the engine drawing its east-hound freight-train. Circumstances upon which the affirmative inference depends are also detailed, and it is averred that there was no evidence introduced tending to show that the barn was on fire before the train and engine in question passed, and that it can he proved by a person named that said barn was on fire before the engine, from which it is claimed said fire originated, had passed said barn, and when said engine was one-half mile distant therefrom. The affidavit of the witness and the transcript of the evidence given on the trial of the cause are made a part of the complaint. To this pleading appellee demurred for want of facts, and such demurrer was sustained. Appellant refused to plead further, and judgment was rendered against it, from which judgment it also prosecutes a term-time appeal (Mo. 5,926), assigning error upon the action of the court in sustaining said demurrer. The causes were, upon the motion of appellant, assented to by appellee, consolidated. Oldfather v. Zent (1894), 11 Ind. App. 430.
If the averments show a sufficient excuse for not producing the witness at the trial, then the demurrer to the complaint for a new trial should have been overruled. The averments in that regard are: That the appellant “diligently searched and inquired for all evidence which would tend to sustain its defense, * * * and was unable to find any other evidence than was offered by it;” that as
The affidavit of the witness, whose testimony forms the basis of the application, is to the effect that on the morning of August 19, one of appellant’s trains went on a side-track at TJpton station, and stood there waiting for the train, the engine of which is averred to have set the fire complained of; that, while said train was standing on the switch, the affiant went to the caboose and engaged in conversation with the conductor; that, while so engaged in conversation, he looked through a window of the caboose and saw smoke issuing from an opening in the north side of said barn, at a time five or six. minutes before the south-bound train, which is averred to have caused the fire, had reached said station; that he supposed, when he saw the smoke issuing from the barn, that it was dust, caused by throwing hay into the barn, but learned afterward that no hay had been put into it at that time; that, because of such supposition, he gave no alarm; that after the west-bound train passed the
The second assignment is that the court erred in overruling appellant’s motion for a new trial.
The judgment will therefore be reversed, costs occasioned by the appeal in No. 5,926 are taxed to the appellant, and the cause is remanded for further proceedings.