141 Ind. 661 | Ind. | 1894
Lead Opinion
This was an action by the appellee, against the appellant, to recover for the loss of a saw mill and certain timber and lumber, and for injuries to the machinery of said mill, alleged to have been sustained by fire communicated to said mill by the careless and negligent emission of sparks from'appellant’s locomotive, through insufficient spark arresters.
The complaint was not drawn with care in its allegations as to the insufficiency of the spark arrester, nor in the negative allegation of freedom from contributory negligence; but we pass the questions suggested and proceed to consider what we regard as a vital question.
The following answers to interrogatories, with others, were returned by the jury with their general verdict:
“1. Was not the engine of defendant, which is alleged to have fired plaintiffs’ property, described in the complaint, known as number 163? Ans. Yes.”
“3. Was not such engine provided with a spark arrester known as the extension front? Ans. Yes.”
“10. Was not the spark arrester on the engine of defendant, which is claimed to have started the fire, of the
”12. Was not the spark arrester in the engine claimed to have fired plaintiff’s property in sufficient and proper repair? Ans. No.”
”13. If you say ‘no’ to interrogatory number 12 state specifically wherein the spark arrester was out of repair? Ans. First, because it emitted too many sparks. Second, because the sparks emitted were too large, there being a break in the netting.”
”14. Was not the engine claimed to have fired plaintiff’s property, while passing plaintiff’s property and going through Sidney, properly operated by a skilled engineer? Ans. Yes.”
We have carefully read the evidence and find that the answer of the jury to interrogatory numbered 13 is not only not sustained by any evidence, but it is opposed to the uncontroverted evidence of several witnesses who testified to the unbroken condition of the spark arrester. This condition was shown, not only from actual examinations of the spark arrester, but from observations of experts, that a break in the netting of a spark arrester causes the sparks to concentrate at the point of such break and to pass out only at such break. No such action of the sparks emitted from engine numbered 163 was shown by any witness nor by any circumstance while the undisputed evidence of the engineer of that engine was that the sparks were not so concentrated. The evidence, without conflict, supports the answers of the jury to interrogatories numbered 1, 3, 10 and 14.
In this condition of the record we have a case where the locomotive claimed to have communicated the fire was equipped with the most approved and best known spark arrester, in good repair, and properly operated by a skilled engineer. If the fire which destroyed the ap
In the last of these cases it was said: “The emission of sparks from such locomotives results from the mere use and is as natural as it is common; therefore, it can not be presumed, either as a matter of law or matter of fact, that the escape of sparks is caused by carelessness or negligence in the use. * * * It is not enough to show that the injury was caused by sparks escaping from a passing engine, without more. A party is not answerable in damages for the reasonable exercise of a right. A liability arises only when it is shown that the right was exercised negligently, unskillfully or maliciously.”
In Indianapolis, etc., R. W. Co. v. Paramore, supra, it was held that affirmative evidence of negligence was necessary, even where it appeared that the sparks caused the loss. It was there further held that ‘ ‘Every proprietor adjoining a railroad may lawfully deposit his property or goods or erect valuable buildings on his own premises, in close proximity to such road; but in doing so he takes upon himself the risk of danger of fire being communicated thereto without the fault of the railroad company or its servants.”
The rule adopted in that case was expressly affirmed in the cases of Pittsburgh, etc., R. W. Co. v. Hixon, supra, and. Chicago, etc., R. W. Co. v. Ostrander, supra, and in the recent case of Louisville, etc., R. W. Co. v. Schmidt, 134 Ind.
The hazards of fire are no greater from the ordinary use of the railway locomotives than from the saw mill, and when each has opportunity to cause the loss, there is no occasion for departing from the established rules to cast the responsibility upon either. The only shadow of justification for the verdict in this case is upon the claim that certain witnesses, who saw locomotive numbered 163 pass through Sidney the night of the fire, saw her emitting sparks, described as varying in size from that of a’grain of wheat to that of a grain of corn. Such sparks are not shown by the evidence to have been of such extraordinary size as not to have been emitted through a regulation mesh or screen opening. In the absence of such evidence, and considering the clear and positive evidence that the screen was in proper repair, there was no conflict in the evidence, and the general verdict in favor of the appellee was without support.
We conclude, therefore, that the circuit court erred in overruling appellant’s motion for a new trial, and its judgment is for that error reversed, with instructions to grant a new trial.
Rehearing
We are met with an earnest and able petition for a rehearing in this case, and have given the argument of counsel our careful consideration.
Counsel assume that because of our conclusion that interrogatory numbered one was sustained by the evidence, we held the evidence sufficient to establish the firing of appellee’s mill by locomotive 163. By no means do we desire to be so understood; on the contrary there was conflict in the evidence as to whether that locomotive fired the mill or that the fire had originated upon the premises. If it had been our privilege to weigh the evidence, we might have found it difficult to adopt the view that the fire did not originate upon the premises. By that interrogatory and the answer of the jury, we understood, as we now understand, that the locomotive, described generally and without number in the complaint, was numbered 163. The inquiry was as to the-identity of the locomotive, which it was alleged had fired the mill, and not as to whether that locomotive had fired the mill.
There was much evidence of the character of locomotives in general which had, for months before the»occurrence in question, been in use by the appellant, and particularly as to the size, character, and height of the-sparks emitted from them, but it was finally settled that 163, if any, was the locomotive that must have fired the mill. But two witnesses testified to seeing that locomotive pass the vicinity of the mill. One said that the-sparks emitted were, in size, from "the little end of your finger up to the size of a pea,” and that they would go and keep alive about twenty-five feet from the flue. As there was no claim by this witness that such sparks were thrown from the track or to any consider
The witness Brumennyer testified that if sparks the size of a grain of corn or a pea were thrown “40 or 50 feet in the air there would be something wrong with the spark arrester.” Of this fact we may say, as was said of the like conclusion by the witness McKenzie, it is not within the hypothesis of the evidence of the witness who testified to the height to which sparks were thrown by the locomotive in question. Upon these false hypotheses appellee’s learned counsel build, as probably did the jury, the conclusion that “the sparks emitted were too large, ’ ’ and that there was ‘ ‘a break in the netting. ’ ’ This false conclusion can not be accepted as raising a conflict with the positive evidence that the spark arrester was not defective.
It is urged now, for the first time, as in conflict with our holding, and in support of the verdict that the fact, testified to by one witness, that it was difficult to remove the netting because it was set in bars which were bolted to the stack by five dozen bolts and that such bars were corroded, as he determined from the presence of cinders on top of the netting, proved that there was an imperfection in the netting. The fact that the bars, which were claimed to be corroded, were not the wires which constituted the netting is manifest, both from inquiries by appellee’s counsel and by the answers of the witness. It is also manifest that any difficulty attending the removal of netting is no evidence of the imperfection of the netting. If, as we assume, the bars but supported the netting, we are unable to determine how the fact of their having been corroded permitted sparks larger than the regulation mesh to escape through the netting, and it would certainly not uphold the theory that there was a break in the netting. We are equally at a loss to know,
It can not be forgotten that the burden of the issue of defective appliances rested upon the appellee, and that such burden could not be discharged by merely suggesting possibilities or raising vague doubts, from which reasonable and probable inferences of fact could not legitimately be drawn in contradiction of the positive and unequivocal evidence that no defects existed.
No one claimed and no evidence authorized the inference that “too many sparks were emitted.” No evidence was given that sparks as large as a grain of corn could not have passed through a regulation mesh. No evidence was given that the netting was broken, and the conclusions of the jury, as answered to the thirteenth interrogatory, have no support, but stand upon unjustifiable inferences and upon unwarranted hypotheses. We did not hold and do not now hold, as counsel suggest, that the mere failure of proof to support an answer to an interrogatory requires reversal, but in this case it is held that a fact, found by the special answers, being indispensable to the support of the general verdict but not being supported by the evidence, establishes the weakness of the general verdict and requires its overthrow.
The petition is overruled.
