Chicago & E.R. Co. v. Kreig

• Decision Date: 24 May 1899
• Court: Indiana Appellate Court
• Parties: CHICAGO & E. R. CO. v. KREIG.

22 Ind.App. 393

53 N.E. 1033

CHICAGO & E. R. CO.

v.KREIG.

Appellate Court of Indiana.

May 24, 1899.

Appeal from circuit court, Fulton county; A. C. Capron, Judge.

Action by Benjamin Kreig against the Chicago & Erie Railroad Company for damages from fire set by defendant's locomotives. From a judgment for plaintiff, defendant appeals. Affirmed.

W. I. Johnson, J. S. Slick, and Holman & Stephenson, for appellant. Pettit & Stitt and Esseck & Metzger, for appellee.

BLACK, J.

In the complaint of the appellee against the appellant there were two paragraphs. It is pointed out by counsel for the appellant that the case proceeded on the first paragraph, and all assignments of error having relation to the second paragraph are expressly waived. Therefore we will not consider such alleged errors.

In the first paragraph it was shown, in substance, that the appellant on the 24th of March, 1895, in running its trains and locomotives along its right of way, “carelessly, negligently, and wrongfully failed and omitted to use safe and sufficient spark arresters, or other proper appliances to prevent the emission of sparks and fire from said locomotives, but carelessly and negligently permitted them, and so operated them as to cause them, to emit sparks and fire upon and into the premises upon which” stood a certain large frame building and barn, close to appellant's right of way, on the premises next adjoining a certain farm owned by the appellee, “and upon and into said building and barn, whereby the same, with its contents, was ignited and totally destroyed, and whereby, and by reason thereof, and of said fire from said locomotives, sparks and fire were carried therefrom, and emitted into and alighted upon” the barns, premises, and property of the appellee (described) on said farm of the appellee, “by reason whereof the same were ignited and totally destroyed, with all said contents of said buildings and improvements.” The values of the buildings and other property of the appellee so destroyed were stated. It was alleged that “said fires, loss, and damage were caused without fault upon the plaintiff's part, but wholly by said fault and negligence of defendant and its said defective machinery; that defendant negligently permitted said fire to so spread to plaintiff's property; that plaintiff has no knowledge of the mechanism of locomotives, and cannot, therefore, set out more specifically what mechanism could and should have been used.” The damages were laid in the sum of $5,000, etc. The court overruled appellant's motion to make this paragraph more specific by stating therein “the engine of what train it was that started the fire complained of.” This motion was itself indefinite. If it had been sustained, in what respect would the appellee have been required to change the complaint? A particular engine might have drawn a number of trains on the day in question, and the designation of one of them might not have been of any advantage to the appellant. The requirements of the motion might have been complied with by designating a westbound train as the one whose engine started the fire, and it is not apparent that this would have served any useful purpose for the appellant. The motion should have specified in what respects the appellant wished the engine to be identified, in such a manner that it would be apparent that the sustaining of the motion would be beneficial. It already appeared in the complaint that the fire was caused on a certain day by sparks and fire from the engines running by the premises in question. Can it be said that there was a refusal, prejudicial to the appellant, to require the train to be designated in some certain manner? Unless the motion to make more specific ought to be sustained in the form in which it is made, there can be no available error in overruling it. Where it is claimed that, for the overruling of a motion to make a complaint more specific, we should reverse a judgment rendered upon a verdict on the trial of an issue formed on that pleading, it should appear to be reasonably probable that the defendant was deprived, to his prejudice, of some material and specific information which he clearly demanded by his motion. The judgment should not be reversed upon such a ground because the trial court did not indulge in a construction of the motion favorable to the mover, beyond the strict meaning of its terms. As against the action of the trial court, motions, as well as pleadings, strictly so called, must by us be construed most strongly against the proposers thereof.

It is contended that the court erred in overruling a demurrer for want of sufficient facts to the first paragraph of complaint. The complaint is characterized in some portions thereof by seeking after brevity, yet, when all its averments are considered together, and given their ordinary and legitimate significance, we think a cause of action sufficiently appears. A complaint founded on negligence is not insufficient on demurrer because of failure to state therein in detail the facts constituting negligence.

The court overruled the appellant's motion “for judgment in its favor upon the interrogatories herein, notwithstanding the general verdict of the jury in favor of the plaintiff.” If this be treated as equivalent to a motion for judgment upon the answers to the interrogatories, we do not find the answers sufficient to override the general verdict. Our attention, in this connection, is specially called to the interrogatories and answers relating to the locomotive in question, the operation thereof, and its spark arrester. By the general verdict the jury determined in favor of the appellee all the material questions involved in the issue formed by a denial of the complaint, and the general verdict must control unless there be answers which, being uncontradicted by other answers, cannot be reconciled with the general verdict under any supposable evidence admissible under that issue. It is not necessary for the appellee that the answers to interrogatories should support the general verdict, but it is necessary for the appellant that they override it. It was specially found that the engine by which the fire was communicated to the barn first burned, on the premises of Dr. Case, adjoining the appellee's land, was operated by a skilled engineer, and it was also found that there was no evidence that the engine was properly operated. There might have been, notwithstanding these findings, evidence from which the jury might have found that the engine was not properly operated. There were findings showing the kind of engine and the kind of smokestack and spark arrester, and that they were of the approved kinds in general use on first-class railroads. In answer to interrogatory 32, the jury found that the spark arrester was not in a good state of repair, and in answer to interrogatory 33 they stated that there was no proof furnished as to the manner of defect,-only that the engine emitted sparks that were carried a distance of 80 feet from appellant's track, and upon lands adjoining its right of way, igniting rubbish at various points. There were other findings,-that Dr. Case's premises were set on fire from the smokestack of this locomotive; that the spark by which this fire was so set alighted about 30 feet north of the north line of appellant's right of way; that this engine on that day emitted from its smokestack sparks and fire which retained life and set fires to adjacent premises at places from 60 to 100 feet from appellant's track (among them, the premises of Dr. Case); that if a locomotive be equipped with the best known and approved spark arrester, such as are in common use, the sparks which escape therefrom lose vitality and life at from 20 to 40 feet from the smokestack. In Railroad Co. v. Paramore, 31 Ind. 143, the action was for the destruction by fire of a quantity of plaintiff's wood through the negligence of the railroad company. The fire originated “close to the track,” but the evidence did not show how it originated, and the only evidence from which an inference that it originated from a locomotive was that two trains had passed but a short time before the fire was discovered; but there was no evidence of any defect or imperfection of machinery, or of want of care or prudence on the part of those having charge of the trains. It was held that the mere fact that the fire is caused by a locomotive does not raise a presumption of negligence. This case, having been criticised in Railroad Co. v. Hixon, 79 Ind. 111, was approved in 110 Ind. 225, 11 N. E. 285, and again in Railroad Co. v. Ostrander, 116 Ind. 259, 15 N. E. 227, and 19 N. E. 110. See, also, Railroad Co. v. Gossard, 14 Ind. App. 244, 247, 42 N. E. 818; Railroad Co. v. Baltz, 141 Ind. 661, 36 N. E. 414, and 38 N. E. 402. However well the doctrine of the Paramore Case may be established, yet the case at bar is not controlled by this doctrine. Here the answers to interrogatories show that the ignition of the Case premises was caused by a spark from the smokestack of a particular locomotive, and do not show facts necessarily inconsistent with the negligence of the appellant which was found in the general verdict.

In answer to interrogatory 32, the jury found the material fact that the spark arrester was not in a good state of repair. If, as argued by appellant, there was conflict between this answer and the answer to the next interrogatory, then it is well settled that answers to interrogatories which are conflicting cannot override the general verdict. Railroad Co. v. McAnnally, 98 Ind. 412;Shuck v. State, 136 Ind. 63, 35 N. E. 993;Manufacturing Co. v. Fields, 138 Ind. 58, 36 N. E. 529. Furthermore, the answer to interrogatory 33, on which appellant relies, sets forth matter of evidence, and not a fact within the purpose of the statute authorizing the propounding of interrogatories to the jury; and in considering a motion for judgment on the answers...