Toledo, St. L.&W.R. Co. v. Home Ins. Co. of New York
| Decision Date | 27 May 1913 |
| Docket Number | No. 8,001.,8,001. |
| Citation | 53 Ind.App. 459,101 N.E. 1035 |
| Parties | TOLEDO, ST. L. & W. R. CO. v. HOME INS. CO. OF NEW YORK. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Howard County; W. C. Purdum, Judge.
Action by Home Insurance Company of New York against Toledo, St. Louis & Western Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Guenther & Clark, of Frankfort, and Clarence Brown and Charles A. Schmettau, both of Toledo, Ohio, for appellant. Harness, Moon & Voorhis, of Kokomo, for appellee.
This is an appeal from a judgment for $250 obtained by the appellee in an action brought by it against the appellant for damages to a house resulting from a fire alleged to have been caused by appellant's negligence. The appellee had written a policy of insurance on such house and claimed to be subrogated to the rights of the owner thereof by reason of having paid to him, under such policy, the loss sustained on account of such fire and by reason of an assignment to this effect from such owner.
The complaint was in three paragraphs, a demurrer to each of which was overruled; but, as such ruling is not questioned in this court, we need only indicate in a general way the theory of each paragraph.
The first paragraph proceeds on the theory that appellant, while operating its locomotive and train of cars over its track through the city of Kokomo, near the property in question, carelessly and negligently and wrongfully failed and omitted to use a safe and sufficient spark arrester on its locomotive, or other proper appliance, to prevent the emission of unusually large and dangerous sparks and coals of fire from such locomotive, and negligently, carelessly, and wrongfully ran and operated said locomotive at a high and unnecessary head of steam, and thereby caused such locomotive to emit unusually large and dangerous sparks and coals of fire, which set such property on fire.
The second paragraph charges that appellant negligently, carelessly, and wrongfully so ran and operated its locomotive and train of cars through said city and by the property in question at such a high rate of speed and excessive head of steam as to unnecessarily overtax the power of such locomotive, and thereby caused it to emit unusually large and dangerous sparks and coals of fire, etc.
The third paragraph is practically the same as the first, except that the only negligence charged is appellant's failure to use a safe and sufficient spark arrester on its locomotive, or other proper appliance to prevent the emission of unusually large and dangerous sparks and coals of fire from such locomotive, etc.
The overruling of the motion for new trial is the only error relied on. Such motion contains numerous grounds; but appellant, in its brief, presents and urges only two of such grounds, viz., that the court erred in overruling appellant's motion to direct a verdict in its favor, and that the verdict of the jury is not sustained by sufficient evidence. These grounds may be considered together, as they, in effect, present the same question.
It is conceded by appellant that the evidence shows “that appellant's passenger train passed the house in question puffing and blowing a whistle, running fast, and that it emitted numerous sparks, some of which were as large as a woman's finger, and that in about 20 minutes after the train passed the house it was found to be on fire.” It is insisted that such evidence in no wise tends to prove either defective equipment of the locomotive or negligent operation; that there is nothing in the evidence “to show that a locomotive equipped with a spark arrester in good repair and carefully operated by competent employés would not have emitted and thrown sparks and coals of fire of the same size, in the same quantity, for a like distance, and with the same effect as those emitted by the locomotive in question.”
[1] It may be admitted, as appellant contends, that a railroad company has the right to use fire in the operation of its locomotive, and that it is a matter of universal knowledge that no locomotive can be so operated that it will not emit fire at times, and that such right to use fire relieves such company from liability for injury to property resulting from the escape of fire which necessarily results from the operation of its locomotives; that it is only liable, for its negligence in failure to properly equip such locomotive with the proper spark arrester or for negligence in its operation of such locomotive in such a manner as to negligently cause or permit the emission of sparks therefrom. Lake Erie, etc., R. Co. v. Gossard, 14 Ind. App. 244, 245, 42 N. E. 818;New York, etc., R. Co. v. Baltz, 141 Ind. 661, 36 N. E. 414, 38 N. E. 402;Indianapolis, etc., R. Co. v. Paramore, 31 Ind. 143;Toledo, etc., R. Co. v. Fenstermaker, 163 Ind. 534-538, 72 N. E. 561.
[2] This admission, however, does not necessitate the conclusion reached by appellant that there is no evidence in this case from which a jury could infer either that the appellant was negligently using on its locomotive at the time of such fire a defective spark arrester, or that it was at such time so operating its locomotive as to negligently cause it to emit sparks of fire in unusual size and quantities, and that the firing of the house in question, with the resulting damages thereto, was attributable to the one or the other of said causes.
Appellant contends that the “only way to prove negligent operation or...
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