Louisville, N.A.&C. Ry. Co. v. Carmon

• Decision Date: 06 January 1898
• Parties: LOUISVILLE, N. A. & C. RY. CO. v. CARMON.
• Court: Indiana Appellate Court

20 Ind.App. 471

48 N.E. 1047

LOUISVILLE, N. A. & C. RY. CO.

v.CARMON.¹

Appellate Court of Indiana.

Jan. 6, 1898.

Appeal from circuit court, Lake county; John H. Gillett, Judge.

Action by Charles Carmon against the Louisville, New Albany & Chicago Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.E. C. Field, J. B. Peterson, and W. S. Kinnan, for appellant. G. S. Fancher, for appellee.

WILEY, J.

Appellee was plaintiff below, and prosecuted this action against appellant for damages alleged to have been sustained by fire resulting from the alleged negligence of appellant. The complaint is in two paragraphs, but, as no question is presented for our consideration as to the sufficiency of the complaint, it is unnecessary to set it out at length in this opinion. It is sufficient to say that the appellee was the owner of certain real estate situated in Lake county, Ind., and near the appellant's track and right of way.

The negligence complained of in the first paragraph of the complaint is that appellant permitted dry grass, weeds, and other combustible matter to accumulate on its right of way, and that the same was negligently and carelessly set on fire by sparks and coals of fire from a passing locomotive, which fire, it is charged, the appellant suffered to escape from its right of way onto adjoining lands, and thence onto appellee's land, to his damage, etc. The negligence complained of in the second paragraph of the complaint is that in August, 1893, during a great drought, the appellant directed its servants and employés to cut upon its right of way, and near appellee's land, the weeds, grass, etc., growing thereon, and while the same was very dry appellant directed its servants to set fire to such grass, weeds, etc., for the purpose of burning them up, and that it, through its servants, negligently permitted such fire to escape from its right of way onto adjoining lands, and thence onto appellee's land, where his property was destroyed, to his injury, etc. The sufficiency of the complaint was challenged by a demurrer, which was overruled, as is shown by the record, but the demurrer is not in the record, the clerk certifying that it is not upon the files in his office; but as appellant, in its brief, raises no question as to the sufficiency of the complaint, it is thereby waived, and we need not notice it further. The case was put at issue by a general denial; trial by jury, a special verdict, and judgment thereon in favor of the appellee. The appellant moved for a venire de novo, for judgment in its favor on the special verdict, and for a new trial, each of which motions the court overruled, and appellant excepted. The third specification of the assignment of error calls in question the overruling of appellant's motion for a venire de novo. The fourth, fifth, and sixth specifications in the assignment of error are as follows: “(4) The court erred in overruling appellant's motion for judgment in its favor. (5) The court erred in rendering judgment in favor of the appellee. (6) The court erred in overruling appellant's motion for a new trial.”

The special verdict consists of 87 interrogatories and answers thereto. It is earnestly insisted by appellant that the special verdict is so defective, uncertain, and ambiguous that no judgment could be rendered upon it, and hence it was error to overrule its motion for a venire de novo. It is the settled law in this state that a special verdict must find and state all the facts essential to the party's recovery, having the burden of proof. Railway Co. v. Barnhart, 115 Ind. 399, 16 N. E. 121;Railway Co. v. Berkey, 136 Ind. 181, 35 N. E. 3;Railway Co. v. Miller, 141 Ind. 533, 37 N. E. 343;Railway Co. v. Adams, 105 Ind. 151, 5 N. E. 187;Conner v. Railway Co., 105 Ind. 62, 4 N. E. 441; Railroad Co. v. Miller (Ind. App.) 48 N. E. 663. Thus, in a case of this character, the verdict must show the negligence charged against the appellant; that the injury sustained by the appellee was without his fault or negligence; and that it must also show, what, if anything, appellee did to prevent the injury. Appellant contends that the verdict does not find that the appellant was negligent as charged, and also fails to find that appellee was without fault on his part. While we do not decide the question, for it is unnecessary, we are inclined to the view that the verdict does find and show that appellant was guilty of actionable negligence. As to the want of negligence on the part of the appellee, we quote in full all the findings relative thereto, as follows: “(73) Did plaintiff do anything which in any way aided the spread of said fire from said right of way, or which in any way contributed toward the escape of said fire from defendant's right of way, or which in any way aided or contributed toward the spread of said fire to his said lands, or which in any way aided or contributed toward the burning of his said lands? Answer. No. (74) Was the plaintiff guilty of any negligence in the setting or in the escape of said fire from defendant's right of way? Answer. No. (75) Was the plaintiff guilty of any negligence or carelessness in or about the burning of said fire of his said lands? Answer. No. (76) Is it not a fact that plaintiff was not guilty of any negligence or carelessness which in any way contributed to the escape of said fire, or the spread thereof to his said lands, or to the burning of his said lands, or to the damage which he suffered from said fire? Answer. No.” It is clear under the authorities, that interrogatories 74 and 75 call for conclusions, and not statements of facts, and that the answers thereto are conclusions of law. See Railroad Co. v. Miller (Ind. App.) 48 N. E. 663, and authorities there cited. No. 76 may have been misunderstood by the jury, but, it having been answered in the negative, it is directly against the appellee. This only leaves finding 73 to be considered. Standing alone, we do not think it sufficiently shows that appellee was free from fault. The interrogatory contains four elements, all of which are negative: (a) Did plaintiff do anything which aided the spread of the fire from the right of way or (b) which contributed to the escape of the fire, or (c) which aided or contributed towards the spread of the fire to his lands, or (d) which aided or contributed to the burning of his lands? The jury answered this interrogatory in the negative, and hence we cannot say that there is a clear and distinct finding that appellee did not do anything contributing to the injury of which he complains; but there is no finding that he did...