Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Hayes

• Citation: 79 N.E. 448,167 Ind. 454
• Decision Date: 12 December 1906
• Docket Number: 20,876
• Court: Supreme Court of Indiana
• Parties: Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Hayes

79 N.E. 448

167 Ind. 454

Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Hayes

No. 20,876

Supreme Court of Indiana

December 12, 1906

From Ohio Circuit Court; George E. Downey, Judge.

Action by Harry R. Hayes against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment on a verdict for $ 2,925 for plaintiff, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Affirmed.

L. J Hackney, George M. Roberts and T. S. Cravens, for appellant.

Givan & Givan and Charles B. Matson, for appellee.

OPINION

Gillett, J.

This is an action brought by appellee against appellant to recover damages because of the destruction of his property by fire set by one of appellant's locomotives. The complaint was in two paragraphs. The first was based on negligence in the failure to use and keep in repair a sufficient and proper spark-arrester, while the second charged negligence in overtaxing the locomotive. Each paragraph averred that the negligence therein alleged caused the locomotive to throw out large sparks and coals of fire, which fell upon plaintiff's barn and consumed it, and that the fire communicated to and destroyed the plaintiff's dwelling-house and store building. Appellant was defeated below, and the errors assigned are based on the overruling of its motion for judgment in its favor on the jury's answers to interrogatories and on the overruling of its motion for a new trial.

Appellant was not entitled to judgment in its favor on the jury's answers to interrogatories. If it be granted that appellant had a finding in its favor to the effect that the locomotive was equipped with a spark-arrester which was one of the best and most approved appliances for arresting sparks, yet there is no finding as to the condition of said appliance, either at the time the locomotive was taken from the roundhouse for the purpose of making the trip in question or at the time it passed appellee's property. Interrogatories forty-five forty-six, forty-seven and forty-eight, which were answered "We cannot state," or "We do not know," really amount to nothing. Such answers are not equivalent to a finding of no evidence. Allen v. Davison (1861), 16 Ind. 416; Maxwell v. Boyne (1871), 36 Ind. 120; Rowell v. Klein (1873), 44 Ind. 290. If appellant was entitled to answers to these interrogatories, it was the duty of the court, on motion, to require the jury to retire and answer them in accordance with the preponderance of the evidence, or if they found that there was no evidence upon the point, so to answer. Perry, etc., Stone Co. v. Wilson (1903), 160 Ind. 435, 67 N.E. 183; Chicago, etc., R. Co. v. Ostrander (1888), 116 Ind. 259, 15 N.E. 227; Pittsburgh, etc., R. Co. v. Hixon (1887), 110 Ind. 225, 11 N.E. 285. In the event of an answer of "No evidence," its effect would be to establish the fact that the matter to which the interrogatory related was unproved, and it would then be for the court to determine whether said finding, together with the other findings, established the fact that appellant was entitled to judgment notwithstanding the general verdict. The answers in question, however, instead of amounting to matter negativing the averments of the complaint, tend rather to show, if they can be said to have any effect at all, that the jury did not credit the evidence of prior inspection which appellant had offered in support of its defense. There was a finding, however, that the inspection was not thorough, and we observe that the charge of negligence in respect to the management of the locomotive was in nowise negatived by the interrogatories. These considerations, and the fact that appellant did not see fit to take a special finding from the jury on the question as to the condition of the spark-arrester at the time in question, make it clear that appellant was not entitled to judgment on the answers to interrogatories. We are not at liberty to reverse the trial court because of the overruling of said motion, by indulging in matter of conjecture as to the theory on which the jury must have proceeded. It is to be remembered that the motion called for affirmative action, and unless the answers necessarily negatived the general verdict, by showing that under the facts found appellee was not entitled to judgment under the issues, it was the duty of the court to overrule the motion. McCoy v. Kokomo R., etc., Co. (1902), 158 Ind. 662, 64 N.E. 92, and cases cited.

Passing to the second assignment of error, we find that the first insistence thereunder is that the court erred in permitting a witness, one Smith, to answer as to how far the sparks were carried from the burning barn. Appellant has left it to us to search out this evidence in the record, and because of a failure to indicate by page and line where it is to be found we would be justified in passing the point by. Rule twenty-two. We are of the opinion, however, that there was no error in receiving such evidence. While it might not amount to demonstrative evidence of the fact that sparks were thrown by the locomotive to the roof of the barn, since the condition of the wind might not have been the same in each instance, yet appellee was called on to show, in order to...