87 Ind. 339 | Ind. | 1882
Lead Opinion
Action by Charles Ehlert against the Louisville, New Albany and Chicago Railway Company, on a change of venue from the White Circuit Court, to recover damages for the destruction of certain property by fire, alleged to have been caused by the negligence of the company. The complaint was in two paragraphs. The first paragraph charged that the defendant carelessly and negligently suffered and permitted grass, weeds and other combustible material to grow, mature and accumulate along its track and right of way in the vicinity of and adjoining a certain tract of land belonging to the plaintiff; that in the months of July and August, in the year 1881, the said grass, weeds and other combustible material became very dry and easily consumable by fire, of which the defendant had notice; that, on the 29th day of August, 1881, the defendant, by its servants and employees, so negligently conducted the running of one of its engines that said engine set fire to said grass, weeds and other combustible material so accumulated on its track and right of way near the plaintiff’s land, and thus fired the grass, weeds and other combustible material grown, matured and accumulated in the vicinity of and between the defendant’s railway and the plaintiff’s land; that said engine was not then and there in proper repair and condition to prevent fire from being communicated from it to
The second paragraph charged substantially the same facts as those contained in the first, the only noticeable difference between the two paragraphs being one of phraseology merely.
Demurrers to both paragraphs of the complaint were severally filed and overruled. Issue being thereupon joined, there was a verdict and judgment for the plaintiff.
The first objection urged to the proceedings below is that the demurrers ought to have been sustained to both paragraphs of the complaint, and in support of that objection it is insisted that both paragraphs are fatally defective in not averring that the defendant was guilty of negligence in permitting the fire to escape from its right of way onto the land of the ■ plaintiff.
The authorities recognize a well defined distinction between the negligent setting on fire of inflammable material on the right of way of a railroad company and negligeuce by the company in permitting such a fire to escape onto the land of an adjacent proprietor. This distinction may sometimes appear to be a merely technical one, but it is founded upon the idea that every person, including bodies corporate, is permitted to use what belongs to him alone in whatever way he may choose, so long as no one else is injured by his exercise of that right, and hence involves a principle which often becomes important in its application.
The distinction in question was carefully considered and given a practical application by this court, in the case of Pittsburgh, etc., R. W. Co. v. Culver, 60 Ind. 469, and the doctrine of that case has been approved in the later case of Pittsburgh, etc., R. W. Co. v. Hixon, 79 Ind. 111.
The judgment is reversed, with costs, and the cause remanded for further proceedings.
Rehearing
On Petition for a Rehearing.
We have carefully considered the argument of counsel on the petition for a rehearing, and, after a full examination of the cases, have resolved to adhere to our former opinion.
The infirmity in the complaint is that it does not show that the appellant negligently suffered the fire to escape from its own property and be communicated to that of the appellee. The complaint in this respect is not so strong as that held bad in Pittsburgh, etc., P. W. Co. v. Hixon, 79 Ind. 111, and is very similar to the one condemned in Pittsburgh, etc., P. W. Co. v. Culver, 60 Ind. 469. The authorities are unusually harmonious in holding that the complaint must do more than show that the defendant, in such a case as this, negligently set fire to his own property; it must also show that he negligently caused or suffered the fire to be communicated to the property of the plaintiff. The question in this case is one of pleading and not of evidence. Negligence may often be inferred as matter of evidence, where, as matter of pleading, direct averment is essential.
The fault in the pleading under examination is, not that it
Petition overruled.