Chicago & E.R. Co. v. Bailey

• Decision Date: 02 April 1897
• Citation: 46 N.E. 688,19 Ind.App. 163
• Court: Indiana Appellate Court
• Parties: CHICAGO & E. R. CO. v. BAILEY.

19 Ind.App. 163

46 N.E. 688

CHICAGO & E. R. CO.

v.BAILEY.¹

Appellate Court of Indiana.

April 2, 1897.

Appeal from circuit court, Pulaski county; George Burson, Judge.

Action by Isaac N. Bailey against the Chicago & Erie Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

M. Winfield and W. O. Johnston, for appellant. Spaugher & Spaugher, for appellee.

HENLEY, J.

This was an action brought by appellee against appellant, whereby he seeks to recover damages for the loss of a certain lot of hay, corn fodder, and corn, which he alleges was burned and destroyed, caused by appellant's negligence. He further claims damages resulting from the same cause by reason of the destruction of the sod of five acres of his land. The complaint is in three paragraphs. The appellant first filed a demurrer to each paragraph of complaint, alleging want of facts sufficient to constitute a cause of action, which demurrer was overruled by the court, to which ruling appellant excepted, and filed an answer in general denial. The issues thus joined were submitted to a jury, who returned a special verdict by way of answers to interrogatories. After the return of the verdict the appellant moved for judgment upon the verdict, which was overruled by the court, and exception reserved. Thereupon appellant filed a motion for a venire de novo, which the court overruled, and thereupon the court sustained the motion of appellee for judgment in his favor upon the special verdict of the jury, to which ruling the appellant excepted; and various motions were made by appellant to modify the judgment, which were, by the court, overruled, and the court rendered judgment in favor of appellee. Appellant assigned the following errors: First, the court erred in overruling the appellant's motion for judgment upon the special verdict in its favor; second, the court erred in sustaining appellee's motion for judgment upon the special verdict in his favor; third, the court erred in rendering judgment upon the special verdict of the jury in favor of the appellee for $452.50, with interest from December 5, 1895; fourth, the court erred in overruling appellant's motion to modify the judgment by limiting it to $5 and interest from December 5, 1895; fifth, the court erred in overruling the appellant's motion to modify the judgment by limiting it to $447.50, with interest from December 5, 1895; sixth, the court erred in overruling the appellant's motion for a venire de novo.

Each paragraph of the complaint alleges that the appellant had negligently suffered and permitted dry grass, weeds, and other combustible material to be and accumulate upon the right of way; that the same was ignited by a spark of fire from its locomotive, and the fire so ignited was negligently permitted by appellant to escape from its right of way, and spread to and consume appellee's property; all of which was without any fault or negligence on plaintiff's part. It was solely upon the theory of appellant's negligence in allowing combustibles to accumulate and remain upon its track that appellee obtained his judgment. The verdict clearly shows that the fire was not negligently allowed to escape from appellant's locomotive, as appears from the following questions and answers submitted to and answered by the jury: “Ques. Was there a spark arrester on the locomotive of the defendant which caused the fire? Ans. Yes. John Boyle, Foreman. Ques. What kind of a spark arrester was used? Ans. Best in use. John Boyle, Foreman. Ques. Was the spark arrester examined or inspected by the defendant's agents or employés on the 20th day of October, 1894? Ans. Yes. John Boyle, Foreman. Ques. What was the condition of the spark arrester when inspected on the 20th day of October, 1894? Ans. Good. John Boyle, Foreman. Ques. Was such spark arrester on said engine inspected on the 21st day of October, 1894? Ans. Yes. John Boyle, Foreman. Ques. What was the condition of said spark arrester when examined on the 21st day of October, 1894? Ans. Good. John Boyle, Foreman. Ques. Was the spark arrester used on the engine such as is used generally upon the best equipped roads in the country? Ans. Yes. John Boyle, Foreman. Ques. Was the spark arrester used on the engine in question in good repair and condition at the time of the fire? Ans. Yes. John Boyle, Foreman. Ques. At the time of the fire on the 21st day of October, 1894, had it been dry for a long time? Ans. Yes. John Boyle, Foreman. Ques. When was the smokestack and fire arrester first examined after the fire? Ans. October 21, 1894, at 5 o'clock p. m. John Boyle, Foreman. Ques. Who made the examination? Ans. R. B. Thomas. John Boyle, Foreman. Ques. What was the position of R. B. Thomas on defendant's road? Ans. Inspector. John Boyle, Foreman. Ques. Is it possible to use a spark arrester on a locomotive engine for propelling cars which will absolutely prevent the emission of sparks? Ans. No. John Boyle, Foreman. Ques. Could the defendant have used upon the smokestack of the locomotive a better spark arrester than the one that was used? Ans. No. John Boyle, Foreman. Ques. What, if any, other precautions could the defendant have used than it did use to prevent the escape of sparks without abandoning the operation of its road? Ans. None. John Boyle, Foreman.” But this showing does not relieve appellant from liability herein. If appellant was guilty of negligently permitting combustibles to accumulate and remain on its right of way, and set fire to the same, and without fault upon the part of appellee such fire escaped from its right of way, and spread to and consumed appellee's property, without any fault or negligence upon appellee's part, appellant would be liable to him for damages. Railroad Co. v. Clark, 7 Ind. App. 155, 34 N. E. 587;Railway Co. v. Jones, 86 Ind. 496;Railway Co. v. Overman, 110 Ind. 538, 10 N. E. 575;Railway Co. v. Hart, 119 Ind. 273, 21 N. E. 753. Thus it was stated in the case of Railroad Co. v. Clark, supra: “If appellant set fire to the dry grass and other combustible materials which it had negligently suffered to accumulate on its track and right of way, and without fault on appellee's part negligently permitted such fire to escape to his lands, and burn and destroy his property, appellant would be liable to appellee for his damages, whether such fire was started negligently or otherwise.” In the case of Railway Co. v. Overman, supra, the court said: “We think there was no available error in the court's exclusion of the evidence offered by appellant in reference to the kind of stack, fire box, and ash pan in use on its locomotives. The facts that appellant negligently permitted dry grass and other combustible materials to accumulate on its road and right of way, and that fire was communicated thereto from its locomotives in some manner, were shown by an abundance of uncontradicted evidence. The appellee's case, however, could not be, and was not, rested upon these facts, for the appellant had the right to set fire to and burn the dry grass and other combustible material on its right of way; but it was bound, at its peril, to keep such fire within the limits of its right of way.” In the case of Railway Co. v. Hart, supra, the court said: “It was not necessary, to entitle the appellee to recover, to prove all the acts of negligence charged in the complaint. The complaint would have been a good and sufficient complaint if it had omitted all, as charged therein, as to the condition of the engine, and the manner in which it was operated. If a railroad company negligently and carelessly permits grass and other combustible matter to accumulate upon its right of way, and fire is emitted from one of its passing locomotives, and falls upon the grass or combustible matter that has been allowed to accumulate from want of proper care upon its part, and the fire spreads, and passes over upon the lands of the adjoining proprietor, and burns and consumes his property, he being guilty of no negligence contributing to the injury, the railroad company is liable for the loss sustained.” Whether a railroad company used the proper care to remove combustible materials from its right of way is a question of fact for the determination of the jury under the particular circumstances of each case. Railroad Co. v. Mills, 42 Ill. 407;Perry v. Railroad Co., 50 Cal. 578;Kellogg v. Railway Co., 26 Wis. 223. And it remains a question of fact, regardless of how much care was observed in the construction and operation of the locomotives. It cannot be said that a railroad company is guilty of negligence per se from the fact that fire from its locomotive ignites dry leaves or grass on its line or right of way. Whether or not the company is guilty of negligence is a question of fact to be determined by the jury in view of the extent to which dead grass and weeds or other combustible material have been allowed to accumulate at the point where the fire originated; and the season of the year, and all other circumstances affecting liability from fire, are proper matters of evidence to go to the jury to aid them in determining this question. A railroad company should be held to the same diligence in removing combustibles from its right of way that a cautious and prudent man would use in reference to combustible materials upon his own premises if exposed to the same hazard from fire as dry grass...