163 Ind. 592 | Ind. | 1904
Appellee recovered judgment for damages caused hy fire, alleged to have been permitted to escape from a locomotive, through the negligence of appellant. The. negligence charged in the complaint was the use on the locomotive of an insufficient spark-arrester, and an in
• The overruling of the motion for a new trial is the decision challenged. The grounds of this motion are the insufficiency of the evidence, the admission of improper evidence, and the giving and the refusing of certain instructions. Is the evidence sufficient to sustain the verdict ?
Appellee makes the point that the evidence is not in the record because the bill of exceptions purporting to contain it is not shown to have been filed after it was signed by the judge. An inspection of the record reveals that the signing and filing of the .bill occurred upon the same day, and under the repeated rulings of this court in such cases we will presume, in favor of the proper action of the judge, that he subscribed his signature t'o the bill before it was filed. Martin v. State (1897), 148 Ind. 519; Minnick v. State, ex rel. (1900), 154 Ind. 379, 382; Bradley, Holton & Co. v. Whicker (1899), 23 Ind. App. 380.
The plaintiff introduced evidence to the effect that he owns a farm of 100 acres, a portion of which, known as the “woods,” was situate north of and adjoining appellant’s right of way. The railroad at this- point is almost level, and runs east and west. On April 22, 1903, between 11:30 and 12 o’clock a. m., in a dry time, and within a few minutes after a freight-train on appellant’s road went west, a fire broke out in appellee’s woods at a point about ten feet from the right of way. At the time there was a brisk wind blowing from the southwest toward the northeast. The fire spread rapidly, and, before it could be controlled, destroyed growing trees to the damage of the plaintiff of $250. Before the passage of the freight-train there was no fire in the plaintiff’s woods, and aside from the locomotive
To entitle him to recover, the law requires the appellee to establish two things by a preponderance of the evidence: (1) That the fire which destroyed his trees escaped from appellant’s locomotive; and (2) that the escape was caused by the negligence of appellant. Appellee well understanding what the law required of him in this respect. m4de the necessary averment's in his complaint. Has he established both propositions by competent and sufficient evidence? Wg assume, without deciding, that there were enough circumstances established to warrant the conclusion that the fire did escape from appellant’s engine, but we are unable
A railroad company, like an individual engaged in a law^ ful pursuit, is presumed to obey the' law in the running, of its trains. If, therefore, fire escapes from its locomotives, the escape is presumed to have occurred without the fault of the company, and whoever charges the contrary must prove it by a preponderance of the evidence. Chicago, etc., R. Co. v. Ostrander (1888), 116 Ind. 259, 263.
There is no evidence whatever that the fire originated from the escape of coals or sparks from the fire-box or ash-pan, and for the purpose of argument merely, and as indicating the basis upon which the verdict rests, the jury found,, in answer to interrogatories propounded to it by the court, that the fire was started by a spark emitted from the smoke-stack of appellant’s engine, which .engine at the time was equipped with one of the best and most approved appliances in-use for arresting sparks and preventing the escape of fire, and was being operated in a careful manner and by competent employes; but the spark-arrester was not, at the time, in good repair.
What evidence can appellee point to that tends to prove that the spark-arrester was out of repair ? No witness testified that it was in bad condition, or to seeing more sparks issue-from the smoke-stack of the locomotive than is usual
Erom the evidence adduced we have an uneontroverted case where the locomotive, claimed to have communicated the fire, was equipped with the most approved and best known, spark-arrester, in good condition, and carefully operated by competent employes. If fire escaped from such an engine, as we have seen, it must be accounted an accident for which appellant is not liable. The court erred in refusing appellant a new trial.
There are other questions presented which we deem unprofitable to decide, as they are not likely to arise upon a new trial.
Judgment reversed, and cause remanded, with instructions to grant appellant a new trial.