Cleveland, Columbus, Chicago & St. Louis Railway Company v. Hadley

• Decision Date: 02 May 1895
• Docket Number: 1,499
• Parties: THE CLEVELAND, COLUMBUS, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. HADLEY
• Court: Indiana Appellate Court

40 N.E. 760

12 Ind.App. 516

THE CLEVELAND, COLUMBUS, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. HADLEY

No. 1,499

Court of Appeals of Indiana

May 2, 1895

From the Hendricks Circuit Court.

Judgment reversed.

T. S Adams, B. K. Elliott and W. F. Elliott, for appellant.

E. G Hogate, J. L. Clark, T. J. Cofer and C. C. Hadley, for appellee.

REINHARD J. Ross, J., concurs in the result.

OPINION

REINHARD, J.

This action was instituted by the appellee against the appellant for damages to the appellee's land alleged to have been sustained by reason of fire caused by the appellant's alleged negligence.

There was a trial by jury, who returned a special verdict, in which they assessed the appellee's damages at $ 877.50.

Motions for a venire de novo, for a judgment on the special verdict, and for a new trial, made by the appellant, were overruled, and the court rendered judgment on the verdict in favor of the appellee for the amount assessed by the jury.

The errors assigned and discussed by counsel are the overruling of appellant's motion for judgment in its favor on the special verdict, the overruling of its motion for a venire de novo, and the overruling of the motion for a new trial.

The theory of the complaint is that appellant was guilty of negligence in permitting the fire to escape from the premises of the appellant to those of the appellee, and not in negligently setting out or starting the fire. It is insisted that the only negligence found by the special verdict is negligence in setting out the fire and not in suffering it to escape or spread to appellee's premises. Counsel for appellant argue that every complaint must proceed upon some definite theory, and that if this theory is not supported by the facts found in the special verdict no judgment can be rendered thereon. Sloan v. Lick Creek, etc., Gravel Road Co., 6 Ind.App. 584, 33 N.E. 997; Elliott's Gen. Pr., sections 140, 933.

Hence, counsel further contend that if the special verdict fails to find sufficient facts to sustain the theory of negligence in allowing the fire to escape, there can be no recovery.

Conceding that the law is as stated by counsel, are the facts found insufficient to show negligence in permitting the fire to spread to appellee's land?

It must be admitted that the special verdict contains much in the nature of mere legal conclusions and inferences and matters outside of the issues. But if, notwithstanding these unnecessary findings, there still remains enough in it of ultimate facts to show that the fire was negligently suffered by the appellant to escape from its right of way to the appellee's premises, the judgment will be upheld.

We fully agree with the learned counsel for appellant that "the statement that the defendant was negligent, or that it negligently did a designated act, or negligently omitted to do a certain thing, is not sufficient. The facts constituting the negligence and the ultimate conclusion must both be found." Pittsburgh, etc., R. R. Co. v. Spencer, 98 Ind. 186; Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151, 5 N.E. 187; Chicago, etc., R. W. Co. v. Burger, 124 Ind. 275, 24 N.E. 981; Keller v. Gaskill, 9 Ind.App. 670, 36 N.E. 303; Cincinnati, etc., R. W. Co. v. Grames, 136 Ind. 39, 34 N.E. 714.

First and foremost, the jury must find the ultimate facts. If these are such that only one inference may be drawn from them, viz., negligence or no negligence, the jury need not find the inferential fact also, and the court will determine as a matter of law, from such facts found, whether there was or was not negligence. If, however, the ultimate facts are such that reasonable men of equal intelligence may honestly and rationally differ as to the inferences and conclusions to be drawn from such facts, it is for the jury to determine the inferences also; and in such cases these must be stated in the verdict. Hence, it is true, as counsel for appellant contend, that whether the case is one from which the inference of negligence may be drawn by the jury or must be adjudged as a matter of law by the court, the facts justifying the ultimate inference must be found in either event, and these can not be supplied by implication or intendment. Our views upon this branch of the case are so thoroughly in accord with those advanced by the learned counsel for the appellant, that we do not deem it necessary to say more than this, that the law is unquestionably as counsel contend, but whether the facts found are lacking in the particulars pointed out, is, of course, another matter.

It is stated in the special verdict, "that on plaintiff's said premises, adjoining the said right of way of said defendant on the north were 250 rods of rail fence, of the value of 85 cents per rod; two ricks, containing 15 tons of clover and timothy hay, the property of the plaintiff, of the value of $ 105; 50 rods of plank fence of the value of $ 25; 30 acres of timbered blue grass pasture land and 23 acres of clover and timothy meadow, 60 acres of clover and pasture lands, and on said clover and timothy pasture lands were 35 acres of clover ready to gather for seed, the property of the plaintiff, which seed was of the value of $ 35, and all of said property being the property of the plaintiff; that on said right of way of said defendant and adjacent to the premises of said plaintiff, and on the north side of the track of said defendant's railway were large quantities of dry grass, weeds and combustible material, which had been accumulating for more than two months previous to said dates and had for six weeks previous to said dates been in a highly inflammable condition, and covered said right of way from within eight feet of the north side of the track of defendant continuously up to and adjoining plaintiff's premises; that the defendant had not removed or attempted to remove said dry grass, weeds and combustible matter from its right of way, which had so accumulated, although there was no hindrance to the removal thereof during any of said time, nor had defendant taken any steps or precaution to prevent any fire that might become ignited in said dry grass, weeds and combustible matter from communicating with the grass and stubble on the aforesaid premises of plaintiff; that defendant was negligent in suffering said dry grass, weeds and combustible matter to accumulate on its right of way at said place and was further negligent in not taking some steps or precaution to prevent any fire that might become ignited in said dry grass, weeds and combustible material from communicating with the dry grass and stubble on the plaintiff's premises aforesaid, and on said 10th and 20th days of August, 1893, and for some time previous thereto, the grass and stubble on plaintiff's premises aforesaid were dry and inflammable, and on the 10th day of August, 1893, aforesaid, defendant, by its engines, which were being run over said track, set fire to said dry grass, weeds and combustible material on said right of way, adjacent to plaintiff's premises aforesaid, which said fire, by reason of defendant's negligence in failing to employ any means to prevent said fire from communicating with said dry grass and stubble on plaintiff's land, did spread to, and communicate with, the dry grass and stubble on plaintiff's land and ignite the same, which said fire burned and spread over a large tract of plaintiff's said premises, to wit, 90 acres, and communicated with and destroyed said two ricks of hay, and communicated with and destroyed 225 rods of rail fence aforesaid, and 50 rods of plank fence aforesaid, and the clover seed aforesaid, all of the value of $ 356.25; and said fire further burned over and destroyed 25 acres of timbered blue grass pasture aforesaid, destroying the pasture and timber thereon and killing the roots of said grass, and 23 acres of meadow land, destroying the grass growing thereon and killing the roots of the same, and 45 acres of clover and timothy pasture, killing the roots thereof."

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