Chicago & E.R. Co. v. Smith

• Decision Date: 17 February 1893
• Citation: 33 N.E. 241,6 Ind.App. 262
• Parties: CHICAGO & E. R. CO. v. SMITH.
• Court: Indiana Appellate Court

6 Ind.App. 262

33 N.E. 241

CHICAGO & E. R. CO.

v.SMITH.

Appellate Court of Indiana.

Feb. 17, 1893.

Appeal from circuit court Wells county; J. S. Dailey, Judge.

Action by Henry Smith against the Chicago & Erie Railroad Company. Plaintiff had judgment, and defendant appeals. Affirmed.

Otto Gresham and Sharpe & Sturgis, for appellant. Martin & Vaughn, for appellee.

REINHARD, C. J.

This was an action by the appellee against the appellant for damages on account of fire escaping from a locomotive engine on the appellant's railroad running through the appellee's land. The first error assigned is the overruling of the appellant's demurrer to the complaint. The complaint is in two paragraphs. The demurrer is joint, and so is the assignment of error. If either paragraph was sufficient, therefore, the ruling must be upheld. Ketcham v. Barbour, 102 Ind. 576, 26 N. E. Rep. 127; State v. Faurote, 104 Ind. 287, 4 N. E. Rep. 19; Redelsheimer v. Miller, 107 Ind. 485, 8 N. E. Rep. 447. Assuming, however, that the paragraphs have been separately assailed, we are of the opinion that each states a good cause of action. The first paragraph charges that the appellant carelessly and negligently suffered coals and sparks of fire to escape from its locomotive engine, which set fire to dry grass, weeds, stubble, and rubbish, and the combustibles which appellant negligently suffered and permitted to gather, accumulate, and remain on its roads and right of way and along its track, near to and adjoining appellee's lands, and, spreading to said lands, burned his fences, grass, corn, and the soil of said lands to the depth of from one to three feet, all without the contributory fault of the appellee. No particular objection is pointed out to this paragraph, except that the gravamen of the action is the burning of the fences, corn, crops, grass, etc., and not the injury to the soil, and that something more was necessary to show that appellee was free from negligence. We do not regard the burning of the articles named as being the gravamen of the action any more than the burning of the soil. They are all placed by the pleader in the same category as the results of one transaction. Why the allegation of burning the soil should not have the same force and prominence in the construction of the complaint as that of the burning of the fences, grass, etc., is not easy to perceive. The pleader had a right to charge the burning of numerous objects, and, if the burning of but one is proved, the complaint is in this respect sufficiently sustained by the proof to entitle him to recover. The paragraph charges clearly enough that the appellee was free from fault. Railway Co. v. Overman, 110 Ind. 538, 10 N. E. Rep. 575.

The second paragraph does not differ materially from the first, except that it also contains an averment that the fire continued to burn in the soil for the period of one month. It is claimed for appellant that, “the appellee's land being of such a nature that it would burn,” some special allegation should have been made in the complaint showing the appellee's prudence and care in guarding against fires. We think, however, that the general averment of freedom from negligence on the part of appellee was sufficient. The general allegation that the appellee was without fault will suffice, unless it appears from the facts stated that he was guilty of negligence. Railway Co. v. Brannagan, 75 Ind. 490; Railroad Co. v. Barnes, 2 Ind. App. 213, 28 N. E. Rep. 328.

The next error assigned is the overruling of appellant's motion for judgment on the answers of the jury to the interrogatories, and the subsequent error assigned is the sustaining of appellee's motion for judgment on the answers to interrogatories. Without noticing the appellee's objection that these alleged errors are not properly presented, we have examined the question, and have arrived at the conclusion that there was no substantial conflict between the interrogatories and the general verdict. There must, however, be an irreconcilable antagonism between the two, before the general verdict will be controlled by the answers to interrogatories. Byram v. Galbraith, 75 Ind. 134;Railway Co. v. Beyerle, 110 Ind. 100, 11 N. E. Rep. 6; Kirkpatrick v. Reeves, 121 Ind. 280, 22 N. E. Rep. 139.

Appellant's counsel say that in the answer to the twelfth interrogatory the jury found that the appellee's lands were prairie or swamp lands, and were grown up with weeds and bushes up to the line of the appellant's right of way, and that in its answer to the fourteenth interrogatory the jury stated that the appellant's lands that were burned were wild, uncultivated lands, commonly known as “made earth” or “bog prairie,” and of a combustible nature...