Chicago, St. L.&P.R. Co. v. Barnes

• Citation: 2 Ind.App. 213,28 N.E. 328
• Parties: Chicago, St. L. & P. R. Co. v. Barnes.
• Decision Date: 15 September 1891
• Court: Court of Appeals of Indiana

2 Ind.App. 213

28 N.E. 328

Chicago, St. L. & P. R. Co.

v.Barnes.

Appellate Court of Indiana.

Sept. 15, 1891.

Appeal from circuit court, Lake county; Johannes Kopelke, Special Judge.

Action by Joseph D. Barnes against the Chicago, St. Louis & Pittsburgh Railroad Company for damages. Judgment for plaintiff. Defendant appeals. Affirmed.

N. O. Ross and Geo. E. Ross, for appellant. Crumpacker & Spencer, for appellee.

NEW, C. J.

The complaint of the appellee is in two paragraphs to recover damages occasioned by fire set out by the appellant on its right of way, and alleged to have escaped upon the land of the appellee, without his fault, and through the negligence of the appellant. Omitting introductory matter, and the description of the real estate, the complaint in substance is as follows: First paragraph: During the month of July, 1887, the defendant negligently permitted large quantities of hay, dry grass, weeds, and other combustible material to accumulate and remain upon its right of way through and adjoining the plaintiff's said land. In said month the defendant's servants set fire to said hay, dry grass, and other combustible material, and negligently permitted said fire to escape from said right of way, without any fault on the part of the plaintiff, and negligently permitted said fire to enter upon the plaintiff's said real estate, where it spread and ran over about six acres of his said land, destroyed the crops and pasture thereon, and burned and destroyed the muck and peat soil thereon to a depth of three feet, rendering said land miry and worthless. That plaintiff had cattle pasturing upon said land so burning, and the feet and legs of 10 head of said cattle were so burned and injured that they were damaged to the amount of $100. That said fire burned clear across plaintiff's said real estate, between a stream of living water and a large pasture field; and where it was so burned over, said land became and is so soft and miry that stock cannot cross it, and plaintiff is thereby deprived of said stream of stock water, to his damage of $200, all of which happened and occurred without any fault or negligence on the part of the plaintiff. That by reason of the injuries mentioned he has been damaged in the sum of $700, for which he demands judgment. Second paragraph: During the months of August and September, 1888, the defendant negligently permitted large quantities of dry grass, weeds, rubbish, and other combustible matter to accumulate and remain upon its right of way through and adjoining the plaintiff's land. In said month of September the defendant's servants negligently set fire to said dry grass, rubbish, and other combustible material, without any fault on the part of the plaintiff, and negligently allowed said fire to escape from said right of way and enter upon the plaintiff's said land, and burn over two acres of the same. That said fire burned the crops, turf, and muck soil off of two acres of said land, rendering the same soft, miry, and valueless; to the plaintiff's damage of $100. The answer is a general denial. There was a trial by jury, with special verdict returned at the request of the appellant. There was judgment on the special verdict in favor of the appellee for $277.41. Numerous errors are assigned. We will notice those only which are discussed by counsel for the appellant. All others are waived.

The court did not err in overruling the motion to make the complaint more specific. The motion was that the appellee be required to more specifically state in both paragraphs of his complaint the acts of negligence imputed to the appellant, and that he be also required to state more specifically in the first paragraph the precaution taken by him to avoid the injuries complained of. Negligence may consist in the neglect of some duty imposed by law, as well as the careless or negligent performance of some obligation imposed by law or contract. If the neglect be the proximate cause of the injury, it is of no consequence whether it be by way of omission or commission. It is alleged in each paragraph of the complaint that the appellant negligently suffered the fire to escape from its right of way onto the lands of the appellee. This the appellant could have allowed or permitted, without the doing of any positive act, after setting out the fire in the first instance. There can be no presumption that the appellant did any overt or affirmative act in the way of promoting the escape of the fire. The allegation in a pleading that the party complained against negligently committed the particular act, or negligently omitted to do a particular thing, which led to the injury for which redress is sought, furnishes the predicate for the proof of such incidental facts and circumstances as fairly tend to establish the negligence of the primary fact complained of. This rule is abundantly established by authority: Ware v. Gay, 11 Pick. 106; Railroad Co. v. Keely's Adm'r, 23 Ind. 133;Davis v. Guarnieri, (Dec., 1887,) 45 Ohio St. 470, 15 N. E. Rep. 350; Meek v. Pennsylvania Co., 38 Ohio St. 632; Clark v. Railway Co., 15 Fed. Rep. 588; McCauley v. Davidson, 10 Minn. 418, (Gil. 335;)Grinde v. Railroad Co., 42 Iowa, 376. To plead specially all the facts and circumstances from which negligence could be inferred would frequently be to plead evidence instead of facts.

Upon the other branch of the motion it is sufficient to say that the appellee may have been without fault or contributory negligence, even if he did nothing by way of precaution to prevent the escape or spreading of the fire. The circumstances may have been such as to impose no duty upon the appellee in that regard. There can be no presumption that the situation was such as to require of the appellee some effort to prevent the escape and spreading of the fire. It is averred in both paragraphs of the complaint that the appellee was without fault. This cannot be said to be a mere conclusion of law. It is the statement of an ultimate, pleadable fact, the same as an allegation of negligence as applied to the conduct of a party Rolseth v. Smith, 38 Minn. 14, 35 N. W. Rep. 565;Railway Co. v. Walker, 113 Ind. 196, 15 N. E. Rep. 234. There was no error committed in overruling the demurrers to the complaint. Each paragraph states a good cause of action. We do not deem it necessary to occupy much time in speaking of the complaint. A reference to the decided cases in this state will show that each paragraph embraces the averments which have been held to be requisite in that class of cases. Railway Co. v. Ehlert, 87 Ind. 339;Railway Co. v. McBroom, 91 Ind. 111;Railway Co. v. Hixon, 79 Ind. 111.

The only objection pointed out by counsel for the appellant to the first paragraph of the complaint is that it is not alleged that the real estate and cattle were injured without the fault of the appellee. We do not so read and construe the paragraph. In an appropriate place we find the following words: “All of which happened and occurred without fault or negligence on the part of the plaintiff.” We think it very clear from the structure of the paragraph that the words quoted relate to and embrace the injuries complained of by the appellee, as well as the alleged negligence of the appellant in permitting the fire to escape from its right of way to the property of the appellee.

The criticism made upon the second paragraph of the complaint is that it cannot fairly be inferred from the language employed that the two acres of land alleged to have been burned over and rendered valueless is the same two acres upon which the fire is alleged to have entered. We think it is not a strained construction to hold that the two acres are the same in each...