154 Ind. 322 | Ind. | 1900
This action was brought by appellee against appellant to recover the value of a building, machinery, tools, and materials alleged to have been destroyed by fire through the negligence of appellant. Issue, trial, special verdict under the act of 1895, and judgment for appellee. The errors assigned, and not waived, are: (1) The court erred in overruling appellant’s motion to require appellee to make each paragraph of the complaint more specific, definite, and certain; (2) the court erred in overruling appellant’s demurrer to the first paragraph of the complaint; (3) the court erred in overruling appellant’s demurrer to the third paragraph
As the motion to make each paragraph of the complaint more specific, definite, and certain, and the ruling of the court thereon are not made a part of the record by a bill of exceptions, or order of court, no question is presented by the record for our consideration. City of Seymour v. Cummins, 119 Ind. 148, 150, 5 L. R. A. 126; Boyce v. Graham, 91 Ind. 420, 421; Indiana, etc., Co. v. Millican, 87 Ind. 87, 89; Manhattan Ins. Co. v. Doll, 80 Ind. 113, 115; Ewbank’s Manual, §26.
All the paragraphs of complaint were withdrawn except the first and third. The allegations in said first and third paragraphs concerning appellant’s negligence are substantially the same as the complaint in Louisville, etc., R. Co. v. Hart, 119 Ind. 273, 4 L. R. A. 549, which was held good. Under the law, as declared in that case, and the cases therein cited, each of said paragraphs was sufficient to withstand the demurrer for want of facts. The court did not err, therefore, in overruling the-demurrer thereto.
There was no error in sustaining appellee’s demurrer to the second paragraph of answer. The facts alleged in the first and third paragraphs of complaint show that the roadbed, tracks, and siding were under the exclusive control, use, management, and possession of appellant as a part of. its right of way, and that appellant on the 22nd day of August, 1895, and for a long time before that day, negligently suffered and caused the same to be covered over with dry weeds, grass, straw, paper, wood, and other rubbish adjacent to and adjoining the land on which appellee’s factory and buildings were located. The theory of said second paragraph of answer to said paragraphs was that appellee was not entitled to recover because in the written contract entered into between appellant and appellee, by which appellant was to,
It is next insisted that the facts found in the special verdict do not show that the injury and loss sued for occurred on account of the negligence of appellant, and without the fault of appellee. The facts found bearing upon this question are substantially as follows: That on and prior to August 22, 1895, appellee owned a factory building on lot eighteen, in Tibbett’s addition to the city of Marion, Indiana, which was constructed of wood; said lot, being 140 feet long, north and south, and seventy-two feet wide, east and west, abutted upon the north side of appellant’s right of way; that on and prior to said day the appellant used and occupied á strip of ground about seven and one-half feet wide off of the south end of appellee’s said lot for its spur and part of its right of way; that from the center of appellant’s main track to the north side of its said spur was about forty-seven and one-half feet; that on and prior to said day the appellant had charge and control of the right of way upon and along which its railroad ran through the city of Marion, and also had charge and control of the numerous switches and sidetracks upon and along its said right of way through said city, and that said switches and side-tracks extended east and west along the north and south sides of its main track, and from a point west of appellee’s said lot to a point east thereof several hundred yards; that about three years prior to said day the appellant constructed said spur track upon and across said strip of ground off of the south end of said lot, and that during all of said time the same was used and maintained by appellant as a part of its right of way, as a place for storing its cars when not in use, and that all said switches and sidetracks, including said spur, during all said time, were in common use by appellant for handling and storing its trains
Appellant insists that the special verdict is not sufficient because there is no finding as to the amount and extent of the grass, weeds, straw, and other combustible material permitted to accumulate and remain on the right of way, nor that permitting said combustible material to remain there for two weeks was unnecessary, or increased the hazards to appellee’s property.
This contention of appellant is fully answered by what was said in Cleveland, etc., R. Co. v. Hadley, 12 Ind. App. 516, 522, 523. “Counsel insist that the finding that dry grass and other combustible matter Avere negligently suffered to accumulate on the right of way is the finding of a conclusion and not of a fact, unless it were also shown what was the quantity of such combustible material that was suffered to accumulate. Granting that counsel are correct in this position also, Ave think the quantity is sufficiently stated, If there was sufficient of such combustible matter to cover
It is next insisted by appellant that the facts found do not show that appellant knew of the existence of the fire, and that without such knowledge it could not be guilty of negligence in permitting the fire to escape; that the duty of appellant to use reasonable precaution to prevent the escape of fire does not arise until it has knowledge of the existence thereof. The special verdict shows that appellant had knowledge of the accumulation of the combustible material upon its right of way, adjacent to appellee’s factory, and that the weather was very dry for the period of more than two months before said fire, and said combustible matter was highly inflammable, and that the natural sequence of igniting said combustible material was its spread by the burning of said material to appellee’s factory, and the destruction thereof by the fire so communicated; and appellant did nothing to prevent the escape of said fire from its right of way or the spread of said fire to said factory. Appellant was required, under such circumstances,- conditions, and surroundings of its right of way adjacent to appellee’s factory, — environments created by itself, — to prevent the escape of fire from the limits of its right of way. Indiana, etc., R. Co. v. Overman, 110 Ind. 538, 541, 542; Ohio, etc., R. Co. v. Trapp, 4 Ind. App. 69; Cleveland, etc., R. Co. v. Hadley, 12 Ind. App. 516. As was said in Cleveland, etc., R. Co. v. Hadley, supra, at p. 523:
It has been held in many cases in this State that if a railroad company negligently permits grass or other combustible material to accumulate on its right of way, and the same is ignited by fire emitted from its locomotives, and such fire by means of said combustible material escapes to the land of the adjoining proprietor, and bums and consumes his property, without any negligence on his part contributing to the injury, the railroad company is liable for the loss sustained. Louisville, etc., R. Co. v. Hart, 119 Ind. 273, 281; Indiana, etc., R. Co. v. Overman, 110 Ind. 538, 541, 542; Chicago, etc., R. Co. v. Williams, 131 Ind. 30, 33; Pittsburgh, etc., R. Co. v. Jones, 86 Ind. 496, 499, 500, 44 Am. Rep. 334; Chicago, etc., R. Co. v. Bailey, 19 Ind. App. 163, 166-168; New York, etc., R. Co. v. Grossman, 17 Ind. App. 652, 655; Cleveland, etc., R. Co. v. Hadley, 12 Ind. App. 516, 523-525, and cases cited; Terre Haute, etc., R. Co. v. Walsh, 11 Ind. App. 13, 16; Chicago, etc., R. Co. v. Luddington, 10 Ind. App. 636; Lake Erie, etc., R. Co. v. Clark, 7 Ind. App. 155; Ohio, etc., R. Co. v. Trapp, 4 Ind. App. 69, 71, 72; 13 Am. & Eng. Ency. of Law (2nd ed.), 466-469; 3 Elliott on Railroads, §§1226, 1229.
Appellant insists that, “as no definite place where the fire started is found, the court cannot say that it must have been upon appellant’s right of way, and not upon the ground occupied by the spur switch.” The facts found clearly show that the fire emitted from appellant’s engines ignited the combustible material at a point on its right of way southwest of appellee’s factory, and that the fire spread, through the medium of said combustible material, to appellee’s factory.
Appellant insists that the evidence does not show that the fire started on its right of way from sparks or coals emitted from its passing engines, and that appellant was negligent in permitting the fire to escape from its right of way. Appellee was not required to prove such facts by direct evidence. They may be established by either direct or circumstantial evidence, or by both. Louisville, etc., R. Co. v. Stevens, 87 Ind. 198; Louisville, etc., R. Co. v. Krinning, 87 Ind. 351; Louisville, etc., R. Co. v. McCorkle, 12 Ind. App. 691; Terre Haute, etc., R. Co. v. Walsh, 11 Ind. App. 13, 17, 18; Ohio, etc., R. Co. v. Trapp, 4 Ind. App. 69, 73; 3 Elliott on Railroads, §1244, on p. 1943. No witness testified that he saw a spark or coal pass from appellant’s engine to the combustible rubbish on the right of way, yet the evidence fully justified the inference drawn by the jury that the fire was so started. The evidence, direct and circumstantial, shows that appellant permitted combustible rubbish to accumulate on its
The evidence in regard to the accumulation of rubbish,. the dry weather, the up-grade, the exertions of the engines in drawing the trains up the same, and the consequent throwing of sparks and coals of fire, the frequent ignition of the combustible material on the right of way by fire emitted from said engines before said fire, and other surroundings and conditions of which appellant was bound to take notice, and of which said evidence proved it had actual notice, was sufficient to authorize the jury to find that the natural and probable consequences thereof were that said combustible material on said right of way would be set on fire by sparks and coals from said engines, and that said fire would spread and escape, through the medium thereof, from said right
Appellee was permitted to introduce testimony in regard to the fires being set by engines of appellant near the time of the fire in question, and on the right of way near the same place. Appellant insists that this evidence was not proper for any purpose, for the reason that the theory of each paragraph of complaint was, not that the fire was the result of the careless and negligent construction or operation of appellant’s engines, but its negligence in allowing the accumulation of combustible rubbish upon its right of way, and permitting the fire communicated thereto by its engines to escape to appellee’s premises, and destroy its factory. The theory of the third paragraph of complaint is correctly stated by appellant, and it is unnecessary for us to determine
It is next insisted that the court erred in permitting appellee to prove by a witness, over appellant’s objection, that the property destroyed by fire had a special and peculiar value as a manufacturing plant. Said witness was asked by counsel for appellee to “state what, in your judgment, that factory, building, horseshoes, machinery, and material were worth just before the fire, — the manufacturing plant?” This question was objected to by appellant, “for the reason that the property sued for is sued for in separate items, and not as a plant.” This objection was overruled, and appellant excepted. The witness answered: “About $12,000.” The question was as to the value of said property destroyed as an entirety, and the court committed no error in permitting the witness to answer the same. Moreover the facts found in the special verdict show that the jury only assessed appellee’s damage at the market value of the property destroyed.
It is assigned as one of the causes for a new trial that the court erred in overruling appellant’s motion, made after the jury returned into court their special verdict, and before they were discharged, to require the jury to return to their room and make more specific their answers to each of the interrogatories 151, 173, and 177. If such motion was made, it is not shown by any entry copied in the transcript. The only statement in regard to a motion to make the answers to the interrogatories named more specific is contained in the motion for a new trial. Said motion to require the jury to make their answers to said interrogatories more specific, and the ruling of the court thereon, were not made a part of the record by assigning said ruling as a cause for a new trial, but could only be made a part of the record by a bill of exceptions or order 'of court. No question is presented, therefore, by said cause for a new trial. Binding no available error in the record the judgment is affirmed.