87 Ind. 351 | Ind. | 1882
The facts set up in the complaint are substantially as follows: Appellee was the owner of land in White county, near which, in said county, was and is the railway owned, controlled and operated by appellant; appellant negligently suffered and permitted grass, weeds and other combustible material to grow, mature and accumulate upon its track and right of way in the vicinity of, and in close proximity to, appellee’s land; during July and August, 1881, when the weather was'very warm and dry, said grass, etc., became very dry and combustible, and liable to become fired; on the 29th day of August, 1881, appellant, by its agents and employees, so negligently conducted the running of one of its engines by and near appellee’s land, that said engine fired the said dry grass, etc., on the track and right of way; appellant
• A demurrer to- this complaint was overruled by the court below, and appellant excepted. This ruling is assigned for error in this court. The objections urged to the complaint by appellant’s counsel are, that it is not stated how near appellee’s land is to the railroad; in what particular the engine was defective; what the negligent acts on the part of appellant were; or that the inj ury was the natural and proximate result of the negligent acts of appellant. None of these objections were well taken on demurrer. The proper way to reach them, if they existed, was by a motion to have the complaint made more specific. Cincinnati, etc., R. R. Co. v. Chester, 57 Ind. 297; Barnett v. Leonard, 66 Ind. 422.
Appellant’s counsel insist that the verdict of the jury is not supported by a preponderance of the evidence; that as appellee’s land did not adjoin the appellant’s right of way, but was a half mile distant, and as the intervening lands had upon them grass, weeds and stubble, by which the fire was communicated to his land, the injury was not the natural and proximate result of appellant’s negligence, and, hence, appellee can not recover; that the adjoining land-owners were as much bound to keep their lands free from grass, etc., as the railroad company, and if they did not do so they were guilty of such negligence as will defeat a recovery by appellee. We can not reverse the judgment on the weight of the evidence.
There is evidence to show that the right of way where the
Neither can we say from the evidence that the adjoining land-owners were guilty of negligence in allowing grass and weeds to remain upon their lands. From the evidence as we find it in the record, we can not tell definitely upon what lands grass, etc., was thus allowed to remain. Very many of the most important questions were propounded and answered with reference to a map or plat used by counsel and witnesses in fixing the location and relative position of lands, the points
The grass and weeds in relation to which the jury made special answer were upon lands adjoining the railroad. Appellee’s land is a half-mile distant from the railroad'; the fire spread over intervening lands, upon which were grass and stubble, and ignited stacks of hay upon land adjoining appellee’s land; from these stacks the flames reached the haystacks of appellee, and spread thence to his lands. The jury found, both in their general verdict and in answer to an interrogatory, that appellee was not guilty of contributory negligence, and made proper efforts to arrest the fire and save his property. It can not be said as a matter of law, that the negligence of appellant was not the proximate cause of the injury to appellee. There seems to have been no intervening negligence, and there was no intervening cause operating between the-negligence of appellant and the injury to appellee. The injury was the natural and probable consequence of the negligence of appellant, and such as might have been foreseen in the light of attending circumstances. The authorities are in conflict in the application of the maxim, “ causa próxima, et non remota, spectatur,” to the facts in different cases, but the con
There was no error^iiv’refusing the instructions asked by appellant. The substance of the first is that the escape of sparks from thejjkick of the locomotive is notper se negligence. There is no Available error in the refusal, for the reason that appellant Ipis not been harmed thereby. The jury, in answer to interre/gatories, state that the fire did not originate from such spjrks, but from coals from the fire-box. The alleged error in refusing the fifth instruction so asked is not available for phe reason that such refusal was not made one of the causes fot/a new trial.
/in the ninth instruction so refused the court was asked to /charge the jury, substantially, that if there was an accumulation of grass and weeds upon the land of appellee, and upon the lands between his and the i’ailroad, by means of which the fire reached appellee’s land, he can not recover. There was no error in refusing this instruction. The fact that there may have been grass and weeds upon the lands is not per se negligence. ■ Whether or not the land-owners were guilty of negligence in that particular was a question to be submitted to the jury. See authorities above cited. The court, in its ninth instruction, stated the law correctly upon this point, and a3 favorably to appellant as it had a right to ask.
There being no error in the record, the judgment is affirmed, at the costs of appellant.