Belt R. & Stockyard Co. v. McClain

• Decision Date: 20 November 1914
• Docket Number: No. 8374.,8374.
• Citation: 106 N.E. 742,58 Ind.App. 171
• Court: Indiana Appellate Court
• Parties: BELT R. & STOCKYARD CO. v. McCLAIN.

58 Ind.App. 171

106 N.E. 742

BELT R. & STOCKYARD CO.

v.McCLAIN.

No. 8374.

Appellate Court of Indiana, Division No. 2.

Nov. 20, 1914.

Appeal from Superior Court, Marion County; Charles J. Orbison, Judge.

Action by Alexander McClain against the Belt Railroad & Stockyard Company. Judgment for the plaintiff, and defendant appeals. Reversed, with directions to grant a new trial.Newberger, Richards, Simon & Davis, of Indianapolis, for appellant. Wymond J. Beckett, of Indianapolis, for appellee.

LAIRY, J.

This action was brought by appellee to recover the value of a team of mules and a set of harness destroyed by fire in the barns of appellant in the city of Indianapolis. There was a verdict and judgment in favor of appellee. The first error assigned and relied on for reversal is that the trial court erred in overruling appellant's demurrer to the complaint.

The complaint shows that appellant is a corporation and that, as such, it owns and operates stockyards in the city of Indianapolis. In connection with its stockyards it is alleged that it owned and operated stables in which the teams and harness of stockmen and farmers bringing stock to the yards for sale were kept overnight for hire. It further appears from the complaint that appellee, on the 15th day of December, 1908, brought a load of hogs to appellant's stockyard, and that he placed his team of mules and his harness in the barn of appellant to be kept overnight for a consideration of 50 cents. On the morning of December 16th a fire occurred in which appellee's property was destroyed. The complaint does not proceed upon the theory that the fire originated or was caused by any fault or negligence of appellant. The complaint is based on the alleged negligence of appellant in locking the door of the barn and in failing to have some one in charge of the barn to rescue property in case of fire, and to admit the plaintiff and others to the barn for that purpose.

[1] On behalf of appellant it is claimed that the complaint is defective, for the reason that it shows the fire to have been the direct and proximate cause of the loss to appellee, and that it fails to show any direct causal connection between the alleged negligent conduct of appellant and the loss. The complaint shows the relation of bailor and bailee between appellant and appellee, and out of that relation arises the duty on behalf of appellant to exercise ordinary care for the safety and protection of the property intrusted to his keeping. The question to be determined is: Do the facts stated in the complaint show that appellant was guilty of negligence, and that the negligence charged resulted in the loss of which appellee complains?

[2] The relation of bailor and bailee being shown, the law imposed upon the defendant the duty to use care for the safety of the property intrusted to his care. This duty required the defendant to foresee every danger to such property which a person of ordinary prudence would have foreseen under the circumstances, and to use such care to guard against such dangers as a person of ordinary care, under the circumstances, would have used. If a loss by fire was such a danger to the property as should have been foreseen by a person of ordinary prudence, then it was the duty of defendant to exercise such precautions to prevent a fire as ordinary care required, and to make such provisions for the care of property and for its rescue and preservation in case of fire as ordinary prudence would dictate. The complaint does not charge that the defendant failed in any respect to use reasonable precautions to prevent the occurrence of the fire, or that the fire resulted from any fault or negligence on the part of the defendant, but it proceeds on the theory that it did not exercise the care dictated by ordinary prudence in making provisions for the prompt discovery of fire, and the rescue and preservation of property in case a fire occurred.

[3] The negligence charged is that the defendant negligently locked the door of the barn in which plaintiff's mules and harness were kept, and negligently failed to leave any one in charge of the same, or to give notice in case of fire. It is further alleged that the fire broke out about 3 or 4 o'clock in the morning of December 16, 1908, at some distance from the stalls in which plaintiff's mules were stabled; that plaintiff was notified of the fire, and that he went to the stables for the purpose of rescuing his property; that when he arrived the fire had not yet reached that part of the stables where his property was located; and that he would have had time to rescue it if he could have gained admission to the barn, but that, on account of the doors being locked, and no one being present in charge, he was unable to gain admission to the barn, and in consequence his property was totally destroyed by fire.

The allegations on the subject of negligence seem to be sufficient. The charge that a defendant negligently omitted an act amounts to a charge that ordinary care required the performance of such act, and that the defendant failed to use ordinary care in that particular. If the conditions and circumstances were of such a character that a person of ordinary prudence ought to have foreseen the danger from fire, and if ordinary care under the circumstances required that appellant should keep a watchman in attendance to rescue property in case of fire, and if it further appeared that it failed to do so, this would clearly constitute negligent conduct. This is all embodied in the charge that the defendant negligently locked the barn and negligently failed to have a watchman or any person in charge or in or about the building to give the alarm or rescue property in case of fire.

[4] As a matter of pleading, it is not necessary to state all of the conditions and all of the circumstances which may be taken into consideration in determining whether or not ordinary care required appellant to foresee and provide against the danger of fire in the manner charged in the complaint. Where an act is alleged to have been negligently done or negligently omitted, the conditions and circumstances under which it was done or omitted are not necessary in a pleading, for the reason that it is not the province of the court to judge from such conditions and circumstances whether or not ordinary care required the act to be done or omitted. That is the peculiar province of the jury. The duty to use care in favor of plaintiff being shown, it is sufficient to charge that the acts or omissions specified were negligently done or omitted. The general duty to use care in favor of the plaintiff, which arises, as a matter of law, from the relation between the parties as shown by the complaint, is broad enough and comprehensive enough to include every specific act that ordinary care requires in the discharge of such duty. When the general duty to use care is shown, an allegation that ordinary care required the performance of a particular act is sufficient to bring such act within the scope of the general duty imposed by law. An...