20 Ind. App. 471 | Ind. Ct. App. | 1898
Lead Opinion
Appellee was plaintiff below, and prosecuted this action against appellant for damages alleged to have been sustained by fire resulting from the alleged negligence of appellant. The complaint is in two paragraphs, but as no question is presented for our consideration as to the sufficiency of the complaint, it is unnecessary to set it out at length in this opinion. It is sufficient to say that the appellee was the owner of certain real estate situated in Lake county, Indiana, and near- the appellant’s track and right of way.
The negligence complained of in the first paragraph of the complaint is that appellant permitted dry grass, weeds, and other combustible matter to accumulate on its right of way, and that the same was negligently and carelessly set on fire by sparks and coals of fire from a passing locomotive, which fire, it is charged, the appellant suffered to escape from its right of way on to adjoining lands, and thence on to appellee’s land, to his damage, etc.
The negligence complained of in the second paragraph of the complaint is, that in August, 1893, during a great drought, the appellant directed its servants and employes, to cut upon its right of way and near appellee’s land, the weeds, grass, etc., growing thereon, and while the same were very dry, appellant directed its servants to set fire to such grass, weeds, etc., for the purpose of burning them up, and that it, through its servants, negligently permitted such fire to escape from its right of way on to adjoining lands,
The sufficiency of the complaint was challenged by a demurrer, which was overruled, as is shown by the record, but the demurrer is not in the record, the clerk certifying that it is not upon the files in his office; but as appellant in its brief, raises no question as to the sufficiency of the complaint, it is thereby waived and we need not notice it further.
The case was put at issue by a general denial, trial by jury, a special verdict, and judgment thereon in favor of the appellee. The appellant moved for a venire de novo, for judgment in its favor on the special verdict, and for a new trial, each of whicli motions the court overruled, and appellant excepted.
The third specification of the assignment of error calls in question the overruling of appellant’s motion for a venire de -novo. The fourth, fifth and sixth specifications in the assignment of error are as follows: “(4) The court erred in overruling appellant’s motion for judgment in its favor; (5) the court erred in rendering judgment in favor of the appellee; (6) the court erred in overruling appellant’s motion for a new trial.”
The special verdict consists of eighty-seven interrogatories and answers thereto. It is earnestly insisted by appellant that the special verdict is so defective, uncertain, and ambiguous, that no judgment could be rendered upon it, and hence it was error to overrule its motion for a venire de novo.
It is the settled law in this State that a special verdict must find and state all the facts, essential to the party’s recovery, having the burden of proof. Indiana, etc., R. W. Co. v. Barnhart, 115 Ind. 399; Louisville, etc., R. W. Co. v. Berkey, 136 Ind. 181; Louisville, etc., R.W. Co. v. Miller, 141 Ind. 533; Pittsburgh, etc.,
Appellant contends that the verdict does not find that the appellant was negligent as charged, and also fails to find that appellee was without fault on his part. While we do not decide the question, for it is unnecessary, we are inclined to the view that the verdict does find and show that appellant was guilty of actionable negligence. As to the want of negligence on the part of the appellee, we quote in full all the findings relative thereto as follows: “73. Did plaintiff do anything which in any way aided the spread of said fire from said right of way, or which in any way contributed toward the escape of said fire from defendant’s right of way, or which in any way aided or contributed toward the spread of said fire to his said lands, or which in any way aided or contributed toward the burning of his said lands? Ans. No.” “74. Was the plaintiff guilty of any negligence in the setting, or in the escape of said fire from defendant’s right of way? Ans. No.” “75. Was the plaintiff guilty of any negligence or carelessness in or about the burning by said fire of his said lands? Ans. No.” “76. Is it not a fact that plaintiff was not guilty of any negligence or carelessness which in any way contributed to the escape of said fire or the spread thereof to his said lands or to the burning of his said lands, or to the damage which he suffered from said fire. Ans. No.” (Rec. p. 34, 11.5 to 27.)
It is clear, under the authorities, that interroga
Standing alone, we do not think it sufficiently shows that appellee was free from fault. The interrogatory contains four elements, all of which are negative: (a) Did plaintiff do anything which aided the spread of the fire from the right of way; or (b) which contributed to the escape of the fire; or (c) which aided or contributed toward the spread of the fire to his lands; or (d) which aided or contributed to the burning of his lands? The jury answered this interrogatory in the negative, and hence we cannot say that there is a clear and distinct finding that appellee did not do anything contributing to the injury of which he complains; but there is no finding that he did anything to prevent the injury, after the fire was carried to his premises, or that he omitted to do anything which contributed to his injury. In plainer words, it finds that appellee did not do anything contributing to his injury, but it does not find or show that he did not omit to do something which he ought to have done.
In Galloway v. Chicago, etc., R. R. Co., 58 Am. and Eng. R. R. Cas. 251, it is said: “Negligence consists in doing something, or omitting to do something, which a person of ordinary prudence and care would not have done, or would not have omitted to do, under like or similar circumstances.” There are two classes or kinds of negligence, — active and passive. A person is equally liable for doing a negligent act, which would be active negligence, or in omitting to do an act, which
Thus, one person may negligently set fire upon his own premises, and negligently permit it to escape to the adjoining premises of his neighbor; yet if such other party stand by and see the fire destroy his property, when he could do something, without hazard, to prevent the injury, he cannot recover. He thus becomes passively negligent in failing to do something which it was his duty to do. As was said in Briant v. Detroit, etc., R. W. Co., 61 Am. and Eng. R. R. Cas. 523: “It is true that, if the fire had been started, and the plaintiff could have extinguished it, he would have been in fault in not doing so.”
The burden rested unon the appellee to prove that his own negligence, be it either active or passive, did not contribute to his injury. And it is not sufficient that the verdict is silent and there is nothing therein even tending to show either contributory negligence or freedom therefrom. As was said in Hinckley v. Cape Cod R. R. Co., 120 Mass. 275, and quoted approvingly by this court in the City of Huntingburg v. First, 15 Ind. App. 552: “Mere proof that the negligence of the defendant was a cause adequate to have produced the injury will not enable plaintiff to recover, as it does not necessarily give rise to the inference of due care upon his part, proof of which is essential in his case.” In that case
The latest case, and in which the authorities are collected and cited, is that of the Wabash R. R. Co. v. Miller, supra. In that case the verdict was silent as to the negligence of the appellee, except that there was a finding that the injuries occurred without any fault or negligence on his part, which finding was held to be a conclusion of law and not a finding of a fact. The verdict was also silent as to what the appellee did or omitted to do, if anything, to prevent or avert the injury, except that there was a finding that appellee and members of his family made all reasonable efforts to subdue and extinguish the fire, and this finding was held to be a conclusion of law, and not the finding of a fact. Black, J., speaking for the court said: “When, in such a case, the property owner had notice of the fire endangering his property to the loss for which he sues, if he could have prevented the loss by reasonable effort, and did not make such effort, or unless any attempt he could make and did not make to save his property after he discovered its danger, would be useless or extraordinarily hazardous or difficult, he can not recover for such loss. If he fail to do his duty, then to the extent to which his loss is attributable to
The verdict here fails to show whether or not appellee, his agents or servants were present at the fire, and if present, or had knowledge of it, what he or they did if anything, to prevent the injury. In this regard the special verdict was defective, and it was error to overrule appellant’s motion for a venire de novo. The verdict failing to show all the essential facts entitling the appellee to a judgment, we might very properly direct judgment thereon in favor of appellant, but justice seems to demand a new trial. The judgment is therefore reversed, with directions to the court below
Rehearing
On Petition for Rehearing.
Appellee has filed what purports to be a petition for a rehearing. The paper so filed is indorsed as follows: “Appellee’s motion and brief for a rehearing.” The paper filed, in our judgment, is nothing more than an additional argument on the merits of the case. The motion and brief are one and the same thing, and in the beginning it is said: “The appellee in the above entitled cause moves the court for a rehearing in said case, and in support thereof assigns the following reasons: We believe that the court committed an error in reversing the judgment of the lower court.” This is the only reason assigned for a rehearing, and appellee’s brief on the motion immediately follows. True, a petition for a rehearing, and brief in support thereof may be presented together under our practice, although the particular points upon which the rehearing is asked, must be stated in the petition. Elliott’s Appellate Procedure, section 555; Fertich v. Michener, 111 Ind. 472.
Among other things, rule thirty-six of this court provides: “Rehearing must be applied for by petition in writing, setting forth the cause for which the judgment is supposed tó be erroneous.” Section 662, Horner’s R. S. 1897, provides that within sixty days after a case has been determined in the Supreme Court, either party may file a petition for a rehearing, etc. Rule thirty-seven of the Supreme Court is identical on the question of a petition for a rehearing as rule thirty-six of this court, and the statute and rule have frequently been construed by that court. It will be observed that both the statute and the rule contemplate the filing of a petition, and
In his Appellate Procedure, Judge Elliott, see. 555, says: “The office of a petition for a rehearing is to specifically present points for the consideration of the court. A general statement that the court erred in the conclusions asserted in its opinion is insufficient. The petition should state what conclusions counsel suppose to be erroneous, * * * the particular points must be stated in a petition. General statements will be unavailing, and assertions cannot supply the place of argument and authorities.” In Goodwin v. Goodwin, 48 Ind. 584, the court said: “The office of a petition for a rehearing is not to request the court generally to re-examine the questions in the record, or all the questions decided against the party filing it, but it is to point out particularly the errors the court is supposed to have committed in the decision which it has made.” See, also, Western Union Telegraph Co. v. Hamilton , 50 Ind. 181; Ferlich v. Michener, 111 Ind. 472. In Baltimore, etc., R. W. Co. v. Conoyer,supra, the court said: “A petition for a rehearing, under the rules of appellate procedure, is a pleading, and not a mere argument, or brief, as is the paper in this case which is denominated a petition.”
In Reed v. Kalfsbeck, 147 Ind. 148, the court said: “Appellees have filed a motion to reject what purports
Under the uniform decisions and rule thirty-six of this court, the paper filed by appellee in this cause, and designated by indorsement on the back “Appellee’s motion and brief for a rehearing,” does not present any question for review, for the reason that it does not specify the particular causes, or any particular cause, on account of which the opinion heretofore announced is supposed to be erroneous. It is therefore overruled.
