48 Ind. 476 | Ind. | 1874
Suit commenced before a justice of tbe peace, on three causes of action.
The second cause is similar to the first, for setting fire to and destroying six hundred rails, in August, 1869, of the value of thirty-five dollars.
And the third, for destroying in like manner three hundred rails, in June, 1871, of the value of twenty-five dollars, by so. carelessly and negligently running their locomotive.
Judgment for the appellee before the justice; appeal to the Warren Circuit Court, in which a jury trial was had, resulting in a verdict for the appellee. Motion for a new trial overruled. Exceptions, and appeal to this court.
During the trial, the appellee offered to prove by competent witnesses, that the sides of the railway track at Wand’s farm had dry rubbish, logs, and grass thereon. To this evidence the appellant objected, because it did not support the allegation of the complaint, which alleged that the fire was directly communicated to the plaintiff’s property by sparks and coals, etc. The objection was overruled, and proper exceptions taken.
There was no error in this. If the appellant ran her locomotive amidst combustible material, easily ignited, which lay adjoining to the appellee’s premises, it tended to show negligence and carelessness. It was not necessary on the part of the appellee to show that his premises were first set on fire. If the appellant carelessly and negligently ignited inflammable substances on the railroad track, the natural tendency of which was to conduct the fire to the premises of the appellee lying adjacent thereto, the fact would tend to establish the case against the appellant. And we think the causes of action - sufficiently stated the case to admit this evidence. The com
The appellant asked the court to instruct the jury as follows :
“ 5. But the railway company is not liable for injuries to the property of others by fire emitted from its engines, if properly equipped with spark-arresters, and operated with reasonable ■care and diligence.
“ 11. To entitle the plaintiff to recover in this case, you .must be satisfied from the evidence that the fire which caused the plaintiff's injury caught by the sparks emitted by the locomotive, through the negligence of the defendant in failing, for example, to have the locomotive equipped with a proper .and approved spark-arrester, or some such negligent act or ■omission.
“ 13. If, therefore, the plaintiff has suffered injury from the defendant, by the legitimate use of fire and steam, under .such precautions as to spark-arresters as are in approved general use on the railroads, there is what is called damnum, absque injuria—an injury without a remedy."
These instructions were refused by the court, and the appellant took her exceptions.
There was no error in refusing instruction 5. A railroad might be “ properly equipped with spark-arresters," and yet have other defects by which it communicated fire to the appellee's premises; it might be “ operated with reasonable care and diligence," in reference to the road itself, yet run among ■combustible materials, and thus set fire to the appellee’s premises.
Instruction 11 is plausibly worded, but it contains a lurking error in confining the negligence to “ the sparks emitted by the locomotive, through the negligence of the defendant in failing " to equip her locomotive “ with a proper and approved spark-arrester, or some such negligent act or omission."
Instruction 13 is erroneous for the same reasons stated above, only the error it contains is more palpable than it -appears in 11.
It was also virtually decided by the ruling above, on the ■question of admitting evidence, and need not be further noticed.
The court, of its own motion, gave the following instructions, to which the appellant excepted:
“1. It is the duty of railroad companies to use their property so as not to injure the property of others. If they use such precaution, they are not liable for injuries of the kind complained of. To use such precautions, they must provide proper spark-arresters, the best of such as are approved by use, and they must also take such reasonable precautions with their track as would tend to prevent such injuries. It is for you to say, under the evidence, whether these precautions have been used. If you find they have been, you will find for the defendant ; if not, you will find for the plaintiff.
“ 2. If you find that the fire mentioned in the third paragraph of the complaint was caused by the defendant’s locomotive, which caught first within the plaintiff’s field, then there is no question under that paragraph as to the condition of grass and rubbish on the defendant’s track; and the only question under that paragraph is as to the precautions used by the company as to the arrest of sparks; and if they have not been negligent in that particular, the plaintiff cannot recover for the injury complained of in that paragraph.”
We can perceive no error in these instructions. They are fully supported, in our opinion, by the following authorities: Bass v. Chicago, Burlington & Quincy R. R. Co., 28 Ill. 9; St. Louis, Alton & Terre Haute R. R. Co. v. Gilham, 39 Ill.456; Bedford v. Hannibal & St. Joseph R. R. Co., 46 Mo. 456; Kellogg v. The Chicago, etc., R. W. Co., 26 Wis. 223; Flynn v.
The appellant claims a reversal on the weight of evidence. We have examined it carefully, and are of opinion that it fairly sustains the verdict.
The judgment is affirmed.
Petition for a rehearing overruled. •