Toledo, St. L.&W.R. Co. v. Parks

• Decision Date: 07 December 1904
• Docket Number: No. 20,414.,20,414.
• Citation: 72 N.E. 636,163 Ind. 592
• Parties: TOLEDO, ST. L. & W. R. CO. v. PARKS.
• Court: Indiana Supreme Court

163 Ind. 592

72 N.E. 636

TOLEDO, ST. L. & W. R. CO.

v.PARKS.

No. 20,414.

Supreme Court of Indiana.

Dec. 7, 1904.

Appeal from Superior Court, Grant County; B. F. Harness, Judge.

Action by Henry N. Parks against the Toledo, St. Louis & Western Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Transferred from Appellate Court under section 1337u, Burns' Ann. St. 1901. Reversed.

Guenther & Clark, for appellant. John A. Kersey, for appellee.

HADLEY, J.

Appellee recovered judgment for damages caused by 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 insufficient furnace, fire box, and ash pan, by reason whereof fire was thrown out and away from the engine onto the plaintiff's timber land adjoining the defendant's right of way, ignited the grass, and destroyed his growing trees. The answer was a general denial. 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.

In 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 to the bill before it was filed. Martin v. State, 148 Ind. 519, 47 N. E. 930,Minnick v. State, 154 Ind. 379, 382, 56 N. E. 851;Bradley, etc., Co. v. Whicker, 23 Ind. App. 380, 381, 55 N. E. 490.

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 10 feet from the right of way. At the time there was a brisk wind blowing from the southwest towards 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 that hauled the train, there was no known actual or probable source of the fire. On the other hand, the defendant produced evidence that engine 64 pulled the freight train that passed the point where the fire occurred about 11:45 a. m., and no other engine or train passed the place within one hour of the time of the fire; that engine 64 was equipped with a spark-arresting device that was in common use on railroads, and was generally regarded as one of the best and most approved devices for preventing the escape of fire. On the evening after the fire, upon the return of engine 64 to the roundhouse, it was inspected by a competent inspector, who examined the spark arrester, fire box, and ash pan, and made as the inspection progressed, and as he does in all inspections, a record of the condition of each part, and the spark...