Chicago, St. Louis And Pittsburgh Railway Company v. Burger
| Decision Date | 06 June 1890 |
| Docket Number | 14,241 |
| Parties | The Chicago, St. Louis and Pittsburgh Railway Company v. Burger |
| Court | Indiana Supreme Court |
From the Jasper Circuit Court.
Judgment reversed, with directions to grant a new trial.
N. O Ross, E. P. Hammond and W. B. Austin, for appellant.
I. W Yeoman and S. P. Thompson, for appellee.
This action was prosecuted in the circuit court to recover damages for the destruction of the appellee's meadow by fire, on account of the alleged negligence of the appellant.
We have experienced much difficulty in determining the theory upon which the complaint proceeds. With some reluctance we have concluded that the complaint proceeds upon the theory that the appellant was guilty of negligence in permitting rubbish and combustible material to accumulate upon its right of way, by means of which fire was communicated to the appellee's premises, resulting in the injury of which he complains.
The complaint alleges that appellant's right of way was fenced, on the north side, with a wire fence, against which dry grass, weeds, and rubbish, and other inflammable material, had drifted and lodged, without any fault of the appellee, and was allowed to remain by the negligence of the appellant; that the appellee's meadow was covered with dry grass, either left for seed, or the after-grass grown after mowing; that the locomotive engine, drawing a train of cars on appellant's said road, as the same moved across appellee's land, in an easterly direction, dropped and permitted to escape therefrom sparks and coals of fire, which sparks and coals of fire were allowed and permitted to escape from the flue, smoke-stack, and ash-pan by the negligence and carelessness of appellant, in part, in not providing a proper flue, smoke-stack, spark-arrester, and ash-pan, and other means to arrest the escape of sparks and fire, and in part from the negligence and carelessness of appellant's employees in operating the said locomotive engine, whereby the said coals, sparks, and fire escaped from appellant's locomotive and engine, and falling upon said inflammable material upon appellant's right of way, and along appellant's said fence, as well as upon the appellee's ground on the north side of appellant's track and right of way, communicated fire to such inflammable material and dry grass, from whence the fire so kindled, without the fault of the appellee, and by the negligence of the appellant, spread upon and over appellee's said meadowland, destroying his grass to his damage, etc.
The court overruled a demurrer to the complaint, and upon issues formed the cause was tried by a jury, who, under the instructions of the court, returned a special verdict. The court rendered judgment for the appellee, from which this appeal is prosecuted.
It is first insisted by the appellant that the complaint does not state facts sufficient to constitute a cause of action.
We do not agree with the appellant in this contention. It is settled by the repeated decisions of this court that where a railroad company negligently permits dry grass and other combustible matter to accumulate upon its right of way, which are set on fire by passing engines and the fire is negligently permitted to escape to the land of an adjoining owner, without negligence on his part, such company is liable for the injury resulting from such fire. Louisville, etc., R. W. Co. v. Parks, 97 Ind. 307; Louisville, etc., R. W. Co., v. Krinning, 87 Ind. 351; Pittsburgh, etc., R. W. Co. v. Jones, 86 Ind. 496; Louisville, etc., R. W. Co. v. Hanmann, 87 Ind. 422; Pittsburgh, etc., R. W. Co. v. Hixon, 110 Ind. 225, 11 N.E. 285; Indiana, etc., R. W. Co. v. Overman, 110 Ind. 538, 10 N.E. 575.
The right of way of a railroad company is only an easement, the fee remaining in the owner of the soil, but the railroad company has the exclusive right of possession, so that the owner of the fee has no right to enter and remove combustibles. If the company permits them to accumulate, that fact may warrant a finding of negligence on the part of the company, and it is not contributory negligence for the adjacent owner to permit dry grass and stubble on his land which will spread fires negligently set by the railroad company. Pittsburgh, etc., R. W. Co. v. Jones, supra.
It sufficiently appears from the complaint before us that the appellant suffered combustible material to accumulate upon its right of way which was set on fire by a passing engine and that ...
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Chicago v. Burger
... ... by the repeated decisions of this court that, where a railroad company negligently permits dry grass and other combustible matter to accumulate ... v. Jones, 86 Ind. 496; Railroad Co. v. Hanmann, 87 Ind. 423;Railway Co. v. Hixon, 110 Ind. 225, 11 N. E. Rep. 285; Railway Co v. Overman, 110 ... ...