36 Ind. App. 59 | Ind. Ct. App. | 1905
Action by appellee for damages to property by fire alleged to have been caused by appellant’s negligence.
Appellant first argues that the court erred in overruling its motion to make the second and third paragraphs of complaint more specific.
The third paragraph avers that appellant “negligently failed to have its said locomotive provided with a safe and sufficient spark-arrester and other appliances essential to prevent the dangerous escaping of live sparks and coals therefrom, in this: that the meshes in the spark-arrester in use were too large and insufficient to prevent the escaping of sparks and live coals therefrom;” that on the date named
The gravamen of the second paragraph of complaint is the negligent escape of the fire from the right of way. “This may be established,” said the court in Ohio, etc., R. Co. v. Trapp (1892), 4 Ind. App. 69, “by showing that the defendant omitted to adopt prudent means to prevent its escape, or that through his carelessness the surroundings were permitted to be such that the escape of the fire was the ordinary sequence of its setting out.” See Louisville, etc., R. Co. v. Nitsche (1890), 126 Ind. 229, 9 L. R. A. 750, 22 Am. St. 582.
It was appellant’s duty to keep its right of way reasonably clear and free from combustible material which might serve as a medium to communicate fire to adjoining property. Under the averment that appellant negligently and carelessly permitted the fire to escape from its right of way, it need not necessarily be shown that appellant omitted to adopt prudent means to prevent its escape after the fire started; but it might be shown under that averment that the accumulation of material on the right of way extended up to appellee’s property, so that its communication to appellee’s property would be the natural and probable consequence of its burning upon the right of way. Ohio, etc., R.
It can not be said that an averment that appellant negligently and carelessly permitted the fire to escape from its right of way is pleading negligence in general terms. Negligence may be inferred from facts and circumstances shown in evidence, and it is not necessary to plead all the facts and circumstances from which this inference may be drawn. Chicago, etc., R. Co. v. Barnes (1891), 2 Ind. App. 213.
Judgment reversed, with instructions to sustain appellant’s motion for a new trial. •