Chicago & E.I.R. Co. v. Ostrander

• Decision Date: 21 January 1888
• Citation: 15 N.E. 227,116 Ind. 259
• Court: Indiana Supreme Court
• Parties: Chicago & E. I. R. Co. v. Ostrander.

116 Ind. 259

15 N.E. 227

Chicago & E. I. R. Co.

v.Ostrander.¹

Supreme Court of Indiana.

January 21, 1888.

Appeal from superior court, Vigo county; Joshua Jump, Judge.

Action by Ostrander, appellee, against the Chicago & Eastern Illinois Railroad Company, appellant, for damages resulting from fire alleged to have been negligently caused by the appellant.

Wm. Armstrong, W. H. Lyford, and L. D. Thomas, for appellant.

Appellant's position in this cause is that appellee cannot recover for the damages alleged to have been sustained, unless he has proven by preponderance of evidence that such damages were caused by the negligence of appellant. That he has failed to prove this is shown by the evidence, and also by certain special findings of the jury. We have also the distinct statement of the jury that they find no negligence on the part of appellant either in the matter of keeping his right of way clear of combustibles or using most approved machinery and appliances, or in the use of fuel. As to whether the spark-arrester was out of repair, they “are not satisfied.” All they do find against the defendant is that it is a railroad company, and must therefore pay the bill. The law upon which the appellant relies for defense in this action has been clearly defined by this court and others. We cite the leading decisions as follows: Railroad Co. v. Paramore, 31 Ind. 147;Vaughn v. Railway Co., 3 Hurl. & N. 743, (cited in Gagg v. Vetter, 41 Ind. 242;) Fero v. Railroad Co., 22 N. Y. 209;Railway Co. v. Wand, 48 Ind. 479;Rood v. Railroad, 18 Barb. 87;Field v. Railroad, 32 N. Y. 350; 1 Redf. R. R. 476: Railroad Co. v. Quaintance, 58 Ill. 392; Railway Co. v. Larmon, 67 Ill. 68.

Instruction No. 21 instructs the jury that if the engineer had timely notice “that his engine was to haul said train it was his duty to have had sufficient fire to make steam without injury to property along the right of way,” and that failure to do so is negligence. As we understand the law, it is not the province of the court to tell the jury that such and such a thing is negligence; but the question as to whether or not certain acts or omissions constitute negligence is a question for the jury. The interrogatories and answers show that the jury did not find the appellant guilty of any of the acts of negligence charged in the complaint, and he was therefore entitled to judgment on the special verdict.

H. C. Nevitt and David N. Taylor, for appellee.

Niblack, J.

Joseph W. Ostrander was, at the time of the trial of this cause, and for many years previously had been, the owner of a tract of land in Vigo county, constituting a farm, and lying adjacent to a line of railroad operated by the Chicago & Eastern Illinois Railroad Company. About the last day of July, or the first day of August, 1881, an excursion train belonging to that company passed Ostrander's fence, going north. The season was at that period a very dry one, and soon after the train had passed a fire broke out on Ostrander's land contiguous to the railroad line, which resulted in burning a part of a line of his fence, and in destroying a considerable number of his fruit trees. Ostrander thereupon commenced this action against the railroad company for the damages resulting from the fire, upon the ground that the company had negligently caused the injury to be inflicted.

The complaint was in four paragraphs; the first charging, in general terms, that the defendant had negligently set fire to and destroyed the plaintiff's property. The second averred that the defendant, by its engine, had set fire to certain combustible materials which had been allowed to accumulate on its right of way, and had negligently permitted the fire to escape onto the plaintiff's adjacent land, thereby inflicting the injury sued for. The third was based upon the alleged ground that, by reason of defective netting in the smoke-stack of defendant's engine, fire had escaped and destroyed the property, for which damages were demanded. The fourth complained that the defendant had negligently permitted combustible materials to accumulate on its track and adjacent right of way; that it had negligently suffered the fire to be emitted from its engine, and to set fire to such combustible materials, and that it had further negligently suffered fire to escape and spread onto the plaintiff's land, to his injury as alleged. There was a general verdict for the plaintiff, assessing his damages at $405. This verdict was accompanied by answers to interrogations propounded to the jury at the request of the plaintiff, as follows: (1) “Did the engine of defendant, by throwing sparks, set fire to plaintiff's property? Answer. Yes.” (2) “Was the engine which set fire to plaintiff's property equipped with a good spark-arrester? A. Not satisfied from the evidence that it was.” (3) “Was the spark-arrester in the engine of defendant defective? A. Not satisfied.” (4) “Was there any negligence on the part of plaintiff, Ostrander, that contributed to the injury complained of? A. No.” (5) “Was the plaintiff's property destroyed by the negligence of defendant, and without any negligence of plaintiff? A. Yes.” (6) “Was there negligence by defendant in the use of fuel on the engine which caused the fire? A. Yes.” (7) “Did the negligent use of wood fuel on defendant's engine cause the emission of sparks which kindled the fire that destroyed plaintiff's property? A. Not satisfied on this subject by the evidence.”

The general verdict was also accompanied by answers to other interrogations submitted to the jury at the defendant's request, to the following effect: (1) “Did the defendant have proper servants in charge of its engine, which is claimed to have caused the damage in this cause? Answer. Not satisfied that it did.” (2) “Did the defendant have in use on its engine in question in this cause the most approved spark-arrester then known? A. Yes.” (3) “Did the defendant use reasonable care to keep said spark-arrester in good repair? A. Not satisfied that it did.” (4) “Did the defendant use due diligence to keep its right of way free from combustible materials? A. Yes.” (5) “Did the defendant use due diligence to prevent the escape and spread of fire? A. From the evidence, we don't know.” (6) “Did the fire originate on defendant's right of way? A. Not sufficient evidence to answer whether it did or not.” (7) “Did the plaintiff use such reasonable diligence and means as were at his command to extinguish or prevent further escape of the fire from the right of way to his property, after he saw the fire; or to prevent its spread after he saw it burning? A. Yes.” (8) “Was the spark-arrester used on defendant's engine in good and proper order when it started on that trip? A. Not satisfied from the evidence that it was.” (9) “Did the defendant use wood on the engine in question simply and necessarily for the purpose of kindling its fires just previous to and while starting out from Terre Haute, on the trip in question? A. Yes.”

Upon a return of the verdict, the defendant moved for a venire de novo, upon the grounds- First, that some of the interrogatories were imperfectly answered; second, that some of the answers to interrogatories were contradictory and inconsistent with each other, and, third, that some of the answers in question were not separately signed by the jury. That motion being overruled, the defendant moved for judgment in its favor upon the answers to the interrogatories, notwithstanding the general verdict, and...