Baltimore & O.R. Co. v. Peck

• Decision Date: 22 April 1913
• Docket Number: No. 7,906.,7,906.
• Citation: Baltimore & O.R. Co. v. Peck, 53 Ind.App. 281, 101 N.E. 674 (Ind. App. 1913)
• Court: Indiana Appellate Court
• Parties: BALTIMORE & O. R. CO. v. PECK.

53 Ind.App. 281

101 N.E. 674

BALTIMORE & O. R. CO.

v.PECK.

No. 7,906.

Appellate Court of Indiana, Division No. 2.

April 22, 1913.

Appeal from Superior Court, Porter County; A. D. Bartholemew, Judge pro tem.

Action by Egbert A. Peck against the Baltimore & Ohio Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, with instructions to grant appellant's motion for new trial and further proceedings.W. H. Dowdell, of Valparaiso, Bomberger, Sawyer & Curtis, of Gary, and Calhoun, Lyford & Sheean, of Chicago, Ill., for appellant. Frank B. Parks, D. E. Kelly, and W. J. Fabing, all of Valparaiso, for appellee.

ADAMS, J.

The complaint in this action charges that on or about the 1st day of October, 1908, appellant negligently permitted and caused to be gathered on its right of way in section 6, township 35, range 4 west, in Laporte county, Ind., large quantities of combustible material, and set fire to the same; that appellant negligently permitted said fire to escape from its right of way to other lands in said section 6, south of its right of way, and negligently permitted said fire to escape from said lands to the lands of one Nicholas W. Box, and from the lands of said Box to the adjoining lands of appellee in Porter county; that by reason of the negligence of appellant, in permitting said fire to escape, the same burned over the lands of appellee to a depth of two feet, whereby appellee was damaged in the sum of $1,990. Trial by jury. Verdict and judgment for appellee in the sum of $1,300. Appellant's motion for a new trial was overruled, and this ruling constitutes the only error assigned.

[1] One of the issuable facts in the case was whether appellee's land was burned over by the fire which was permitted to escape from appellant's right of way on or about October 1, 1908, as charged in the complaint, or by a fire occurring at an earlier date. As to this issue, there was a conflict in the evidence; 10 witnesses testifying that appellee's land was burned over during the early part of September, 1908, and other witnesses testifying that said land was burned over after October 1, 1908. The court refused to give instructions 2 and 3 tendered by appellant. These instructions were as follows:

“No. 2. If the fire which destroyed the plaintiff's land occurred before the fire which escaped from defendant's right of way in section 6 in Laporte county, the defendant need not account for the origin of the fire which destroyed plaintiff's property, and, under such a state of the evidence, you must find for the defendant.

“No. 3. If you find from the evidence that the defendant negligently set fire to land in section 6 in Laporte county, on or about October 1, 1908, you cannot find against the defendant in this cause, if you further find from the evidence that plaintiff's land was burned over by a fire which occurred prior to the said fire which defendant allowed to escape in Laporte county.”

The rejected instructions fairly state the law, as applied to the facts assumed therein. As there was evidence tending to prove such facts, the instructions were relevant, and failure to give the same to the jury must be held reversible error, unless said instructions were covered by other instructions given, or the substantial rights of appellant were not prejudiced by such failure. Appellee does not seriously contend that the instructions tendered and refused were not relevant, but insists that the first instruction given by the court of its own motion, namely, that before the plaintiff can recover he must prove the material averments of his complaint by a fair preponderance of the evidence, was in effect the same as the instructions tendered and refused. In this, we think, appellee is clearly in error.

[2][3] The first instruction given by the court was a general instruction required by statute to be given in every case. The giving of a general instruction does not authorize the refusal of a particular instruction, applicable to the issues and the evidence. Fleming v. State, 136 Ind. 149, 154, 36 N. E. 154. A party upon a proper request is entitled to have an instruction given on its own theory of the case, if there is evidence fairly tending to support it. 2 Elliott, General...