Chicago & E.R. Co. v. Kern

• Decision Date: 01 February 1894
• Citation: 36 N.E. 381,9 Ind.App. 505
• Parties: CHICAGO & E. R. CO. v. KERN.
• Court: Indiana Appellate Court

9 Ind.App. 505

36 N.E. 381

CHICAGO & E. R. CO.

v.KERN.¹

Appellate Court of Indiana.

Feb. 1, 1894.

Appeal from circuit court, Adams county; D. D. Heller, Judge.

Action by Washington Kern against the Chicago & Erie Railroad Company for negligently causing damage to plaintiff's property by fire. From a judgment for plaintiff, defendant appeals. Affirmed.

Otto Gresham and Erwin & Mann, for appellant. Peterson & Lutz, for appellee.

DAVIS, C. J.

This was an action instituted by appellee against appellant to recover damages for injuries occasioned by appellant in negligently permitting fire to escape from its right of way to appellee's land, etc. A trial by jury resulted in a judgment in favor of appellee.

The first error discussed brings in review the action of the trial court in overruling appellant's demurrer to the first paragraph of complaint. It is conceded that in all formal allegations the complaint is sufficient, but the contention is that in view of the allegations that there was combustible and inflammable material on appellant's right of way, which was set fire to during the month of September, and spread to the high grass in appellee's field immediately adjoining, there ought to be, in addition to the general averment that appellee was without fault, some showing as to what specific precaution the appellee took to prevent the spreading of the fire to his premises. It is insisted, conceding it was negligence on the part of appellant to permit dry grass and other inflammable material to remain on its right of way, that it was also negligence on the part of the landowner to permit the dry grass on his land to remain adjacent to such dry grass and inflammable material on the right of way. We are not able to agree with counsel in their argument on these propositions. The questions urged by counsel have been, in previous decisions of the supreme court, and also of this court, determined adversely to appellant. Railroad Co. v. Smith, (Ind. App.) 33 N. E. 241, and authorities there cited. The owner of the land, in such cases, is not bound to employ the unusual precautionary measure of removing the dry grass and stubble on his land adjacent to the right of way of the railroad, in anticipation of the fact that the railroad company may negligently set fire to the inflammable material on the right of way, or that the company may negligently permit such fire to escape from the right of way onto his premises. Railroad Co. v. Smith, supra; Railroad Co. v. Barnes, 2 Ind. App. 213, 28 N. E. 328; Railroad Co. v. Jones, 86 Ind. 497.

No specific objection is urged to the second paragraph of the complaint. A careful reading, however, convinces us that it states facts sufficient to withstand the demurrer. The evidence tended to show that appellee's orchard was injured, that some of the fruit trees were killed, that the fire damaged others, and that apples were destroyed, etc. In this connection, appellee, as a witness in his own behalf, was asked to state to the jury what part of the orchard, if any, bore any fruit since the fire. There was no error in allowing the witness to answer this question. Whether the trees in the orchard, or any part of them, which were injured by the fire, afterwards bore fruit, was a circumstance proper to be considered, with the other evidence, in determining the nature and extent of the damages thereto.

The appellee was permitted to testify that his farm was worth $1,200 less after the fire than it was before the fire. This was not error. Railroad Co. v. Smith, supra. The court, at the request of appellant, instructed the jury that the measure of damages was the market value in the orchard of the fruit destroyed by the fire, together with the difference between what appellee's farm was worth immediately before the fire occurred and the value of the farm immediately after...