Baltimore & Ohio Southwestern Railroad Company v. O'Brien

• Decision Date: 29 May 1906
• Docket Number: 5,778
• Citation: 77 N.E. 1131,38 Ind.App. 143
• Court: Indiana Appellate Court
• Parties: BALTIMORE & OHIO SOUTHWESTERN RAILROAD COMPANY v. O'BRIEN

77 N.E. 1131

38 Ind.App. 143

BALTIMORE & OHIO SOUTHWESTERN RAILROAD COMPANY v. O'BRIEN

No. 5,778

Court of Appeals of Indiana

May 29, 1906

From Martin Circuit Court; James T. Rogers, Special Judge.

Action by Mary Q. O'Brien against the Baltimore & Ohio Southwestern Railroad Company. From a judgment for plaintiff defendant appeals.

Affirmed.

W. R Gardiner, C. K. Tharp and C. G. Gardiner, for appellant.

Padgett & Padgett and C. M. O'Brien, for appellee.

OPINION

COMSTOCK, J.

In November, 1903, the appellee owned about two hundred acres of land lying on the north side of and adjacent to the right of way of appellant. On the afternoon of November 9, 1903, fire was discovered in appellee's woods just north of the appellant's right of way, and it spread over about eighty acres of the woods. The wind was blowing from the southeast to the northwest.

The issues in the case are founded on a complaint in one paragraph in which the plaintiff alleges that she was the owner of the forest lands; that appellant carelessly and negligently suffered and permitted dry grass, weeds and other combustible materials to be and accumulate on its right of way adjacent to her lands, which grass, weeds and combustible materials were set on fire by one of defendant's passing locomotives, and that this fire was carelessly and negligently permitted by defendant to spread from the right of way to and upon her said lands, and it burned and destroyed her said forest to her damage in the sum of $ 500. The defendant filed a general denial. The cause was submitted to a jury, and a verdict returned in favor of plaintiff for $ 120, on which the court rendered judgment.

The action of the court in overruling its motion for a new trial is the error relied on for a reversal. The appeal is taken solely upon the evidence. The complaint embodies three propositions: (1) The defendant carelessly and negligently suffered combustible material to accumulate on its right of way; (2) a passing locomotive of defendant set fire to this combustible material; (3) the defendant carelessly suffered and permitted this fire to escape from its right of way to the lands of plaintiff and burn her forest. The burden is on the plaintiff. No presumption of negligence on the part of the company arises from the fact of fire being communicated by an engine in use upon its railroad. Christopher O'Brien, in behalf of appellee testified that there were dry weeds next to the track on the right of way, and dry crab-grass further out; that some had burned. Joseph Appogast, a witness for appellant, testified that the limbs of the trees hang low and reach half way between the north line of the right of way and the track, and some leaves...