87 Ind. 198 | Ind. | 1882
This action was instituted by appellee to recover of appellant the value of property destroyed by fire. In their brief in this court counsel for appellant confine their argument to the alleged error of the trial court in overruling appellant’s motion for a new trial.
The position of counsel is, that the complaint charges negligence only in the running of one of appellant’s trains, and that, upon that charge, there is a failure of proof. The construction of the complaint contended for is too narrow we think. The complaint is, in substance, as follows:
Appellee was the owner of land in White county, adjoining and along the west side of which was located appellant’s railway. During the months of July and August, 1881, while a drought prevailed in the county, appellant carelessly and neg - ligently suffered and permitted grass, weeds and other com-
The complaint closes with the allegations, substantially, that the loss was wholly the result of the carelessness and negligence of appellant; that by reason of its negligence in permitting the said grass, etc., to grow, mature and accumulate upon its track and right of way, as aforesaid, by reason of its negligence in firing said grass, etc., as aforesaid, by reason of its carelessness and negligence in permitting the fire to spread to and upon appellees’ land, etc., as aforesaid, and by reason of using an engine not in proper condition and repair, etc., .appellee’s property was burned.
This complaint, we think, charges negligence not merely in the running of the train, as that term is generally under-' . stood, but negligence in permitting the dry grass, etc., to accumulate and remain upon the track and right of way, at a time when the same would be likely to be ignited from passing trains; negligence in using and running over the track, in the midst of the danger, an engine not in a proper condition, and out of repair, from which fire escaped and ignited vtbe dry grass, etc., and negligence in allowing the fire to spread
If it were necessary, to support the verdict, that the proof should establish the allegations of the complaint in that regard, we could not disturb the finding, under the well established rule that this court will not reverse a judgment upon, the weight of the evidence in case of conflict. Not setting out the evidence upon these points specifically or at length, we may state that different witnesses upon the trial testified that the fire broke out in the grass and weeds, upon the right of way, on the 28th of August, 1881, just after an engine,, called No. 6, had passed over the road; that, as a rule, for some time before the fire complained of, fires broke out upon the right of way just after this engine had passed over the' track; that live coals of fire in more or less quantities, at different places and at different times, were found upon the track after this engine had passed; that, on one occasion, seven different fires, near each other, started up just after this engine' had passed over the road; that, on another occasion, a culvert was found on fire; that spark arresters last from a month to a month and a half; that this engine gave out, and was taken to the shop and repaired on or about the middle of July, 1881; 'that, on or about the 1st of September, 1881, the spark arrester was found to be worn out, the engine was taken to the-shop and a new one put in. Other witnesses testified that the engine was in perfect order, and that it was impossible for fire to get upon the track from the fire-box and ash-pan.
The whole case, however, went to the jury, with the facts- and circumstances as detailed by the witnesses, and we can not say that there was not evidence from which the jury
It is argued further that the evidence shows that appellee did not make proper efforts to save his property. After an examination of the evidence upon that point, we think the jury were not in fault in finding that appellee exercised reasonable care.
The only other question discussed by counsel is the alleged error of the court below in giving to the jury instruction numbered three. This instruction is as follows: “3d. Your first enquiry should be, was the property of the plaintiff set on fire and destroyed by the fire which was allowed to escape from one of the defendant’s locomotives, as alleged in the complaint ? If this point is not established to your satisfaction by a preponderance of the evidence, then your enquiry is at an end, and your verdict should be for the defendant. But should ycu be satisfied that this is established, you will then enquire whether the fire was caused by the negligence and carelessness of the defendant, its agents and servants, as stated in the complaint.”
Complaint is made that this instruction is an invasion of the rights of the jury; that they had the right to reach a verdict by whatever process they might see fit to adopt. Granting that the jury may adopt their own mode of reaching a verdict, yet the court has the undoubted right to direct their attention to such points as must be found in favor of either
An examination of the record satisfies us that the objections discussed by counsel for appellant are not well taken, and that the judgment should be affirmed.
The judgment is affirmed, at the cost of appellant.