Cincinnati, Indianapolis, St. Louis & Chicago Railway Company v. Smock

• Decision Date: 24 January 1893
• Docket Number: 15,925
• Citation: 33 N.E. 108,133 Ind. 411
• Court: Indiana Supreme Court
• Parties: Cincinnati, Indianapolis, St. Louis & Chicago Railway Company v. Smock et al

33 N.E. 108

133 Ind. 411

Cincinnati, Indianapolis, St. Louis & Chicago Railway Company v. Smock et al

No. 15,925

Supreme Court of Indiana

January 24, 1893

From the Marion Superior Court.

Judgment affirmed.

J. T Dye, A. Baker, A. Hendricks and E. Daniels, for appellant.

F Winter and J. B. Elam, for appellees.

OPINION

Coffey, C. J.

This was an action in the court below to recover damages for the burning of an ice-house alleged to have been ignited by sparks from one of the locomotive engines of the appellant. The court overruled a demurrer interposed to the complaint by the appellant, and to this ruling it reserved an exception.

There was a trial by a jury, resulting in a verdict for the appellees, upon which the court, over a motion for a new trial, rendered judgment. With the general verdict, the jury returned answers to special interrogatories. The appellant moved the court to require the jury to answer more fully certain of the interrogatories, which motion was overruled and exceptions were reserved. The appellant also moved the court for a judgment in its favor, on the answers to the special interrogatories, notwithstanding the general verdict, which motion was also overruled and an exception taken.

The negligence charged in the complaint is the use of a defective locomotive engine, and the use of such engine in a negligent manner.

It is alleged that the engine--being defective and out of repair, and not provided with suitable spark arresters--was, also, carelessly and negligently managed by being required to draw an unusually heavy train; and, while opposite the ice-house of the appellees, in order to increase the speed of the train, the appellant carelessly and negligently applied great and unusual power to the locomotive engine, by all of which carelessness and negligence large quantities of sparks and live coals of fire were emitted from said engine, and, by the force with which they were thrown out by said locomotive engine and the wind, they were thrown and carried upon and against the ice-house of the appellees, in large quantities, while yet alive, hot and burning.

It is contended by the appellant that it appears, from these allegations, that the injury was the result of the wind, and that, therefore, there was a break in the line of causation, and for this reason it is not liable. It is conceded, however, that if the wind which carried the sparks and coals of fire from the locomotive engine to the ice-house of the appellees was an ordinary wind, there was, under the decisions in this State, no intervening agency; but it is contended that, under the rule which requires us to construe a pleading most strongly against the pleader, we are to assume that the wind, on this occasion, was extraordinary.

The rule that pleadings are to be construed most strongly against the pleader, is applicable to conflicting or ambiguous allegations or averments. If a pleading is susceptible of two or more constructions, the construction least favorable to the pleader should be adopted by the court, for it is to be presumed that he will not make a statement favorable to his adversary, unless the facts are such as to warrant it. The rule of construing pleadings is so far modified, however, by our code as to require the court to give the pleading in a cause such liberal construction as may be necessary to the administration of substantial justice. Wilson v. Clark, 11 Ind. 385; Dickensheets v. Kaufman, 28 Ind. 251.

But the rule for construing pleadings most strongly against the pleader does not extend so far as to require or authorize the court to insert words not in use in the pleading. It confines the court to the construction of such words and phrases as are used in the particular pleading under consideration.

In this case, the wind blowing at the time of the injury set up in the complaint is not characterized. We can not so construe the complaint as to characterize it as extraordinary, without the insertion of a word into the complaint not used by the pleader. This we can not do. In our opinion the complaint is not subject to the objection urged against it.

Of the interrogatories and the answers thereto returned by the jury, the appellant moved the court to require the jury to make its answers to interrogatories numbered 19, 20, 21, 23 and 25 more definite, certain, and complete.

These interrogatories, and the answers thereto, are as follows:

"Nineteen. Was not the spark-arresting device in engine No. 39, of the defendant, examined and inspected by defendant's employes, about the middle of July, 1887, and was it not then found to be in its proper position, and perfect in every respect?

"Answer. Only partially.

"Twenty. Was not the spark-arresting device in defendant's locomotive engine No. 39 inspected and examined by defendant's employes in a week or ten days after the fire and found to be in its proper position and perfect in every respect?

"Answer. Examined, but date not given. Evidence does not warrant the jury in saying it was in perfect order.

"Twenty-one. Was not the spark-arresting device in defendant's locomotive engine No. 39 in its proper position and perfect in every respect at the time that the locomotive engine passed the ice-houses in question just before the fire? If not, describe in detail in what respect it was out of position or out of repair.

"Answer. The evidence does not warrant the jury in saying that it was in proper position or in perfect repair.

"Twenty-three. Did not said employe, mentioned in the last question, a few minutes afterwards discover that the partition between the two rooms of the ice-house--near the top of said partition and about six (6) feet from the north end of said room and at a place where one or more boards about twenty (20) feet long were off--was on fire?

"Answer. Yes, as to the fire; as to the opening, six inches or more in width and twenty feet long.

"Twenty-five. Did not the fire mentioned in the complaint, which consumed the property aforesaid,...