54 Ind. App. 335 | Ind. | 1913
This is a suit by appellee to recover damages for the destruction of a building by fire alleged to have been caused by appellant’s negligence. The complaint is in two paragraphs, a demurrer to each of which was overruled. A general denial closed the issues. A trial by jury resulted in a general verdict for appellee assessing his damages at $1,200. Appellant and appellee each filed interrogatories which were answered by the jury and returned with the general verdict. Appellant filed a motion for new trial, which was overruled and exceptions properly saved.
Error in the ruling on the demurrer to each of the paragraphs of complaint and on the motion for new trial are assigned and relied on for reversal. Each of the paragraphs contains averments showing that the appellant is a corporation and operates a railroad and trains thereon through the county of Starke, and that appellee owned the land on which was located the house and property alleged to have been destroyed, and that this land ran up to and adjoined appellant’s right of way. The first paragraph proceeds upon the theory that the appellant set fire to the combustible material on its right of way and negligently suffered and permitted it to escape upon and over land adjoining appellee’s and that from there it was carried by the wind to appellee’s property, etc. The second paragraph proceeds upon the theory that on account of the conditions set out therein it was necessarily dangerous to set out a fire and that with knowledge of the conditions then existing, appellant negligently set out the fire on its right of way with the result that appellee’s property was burned.
It is urged against the first paragraph of complaint: (1) That it fails to show that the appellant was guilty of actionable negligence; (2) that no facts were alleged showing either that the fire was set upon the appellant’s right of way by its servants in the performance of their duty, or that there was an accumulation of combustible material
Note.—Reported in 101 N. E. 748. See, also, under (1) 33 Cyc. 1351, 1355; (3) 3 Cyc. 348; (4) 33 Cyc. 1388. As to liability of railroad for fires, see 38 Am. Dec. 70; 78 Am. Dec. 185; 6 Am. Rep. 597; 42 Am. St. 538. As to negligence in setting fire on one’s own premises as affected by weather conditions, see 20 Ann. Cas. 699.