Indiana, B. & W. Ry. Co. v. Overman

• Decision Date: 19 February 1887
• Citation: 10 N.E. 575,110 Ind. 538
• Parties: Indiana, B. & W. Ry. Co. v. Overman.
• Court: Indiana Supreme Court

110 Ind. 538

10 N.E. 575

Indiana, B. & W. Ry. Co.

v.Overman.¹

Supreme Court of Indiana.

February 19, 1887.

Appeal from circuit court, Henry county.

C. W. Fairbanks, for appellant. L. P. Newby and Brown & Brown, for appellee.

HOWK, J.

The first error of which appellant here complains is the overruling of its demurrer to appellee's complaint. The complaint contained four paragraphs, to each of which appellant demurred upon several grounds of objection, but in this court the only objection urged to either paragraph of complaint is that it does not state facts sufficient to constitute a cause of action. In their brief of this cause, appellant's counsel concede that substantially the same facts are stated in each of the first three paragraphs of the complaint, and therefore we need only to consider and pass upon the question of the sufficiency of one of these paragraphs, and the objections of counsel thereto, in this opinion.

In the first paragraph of his complaint the appellee averred that he was the owner of certain lands in Henry county, Indiana, and that such land adjoined appellant's railroad and right of way; that a part of his lands was sown with timothy seed, and was producing a large and valuable crop of grass and hay; that appellee's barn, a large and valuable building, was situate on his lands aforesaid, within about 600 feet of appellant's railroad and right of way, and such barn contained a large lot of lumber, and a number of agricultural implements, all of great value, and belonging to appellee; that on or about the eighteenth day of April, 1883, coals were negligently dropped and sparks emitted from appellant's locomotive engine, which set fire to dry grass, weeds, stubble, rubbish, and other combustibles which appellant negligently suffered and permitted to gather, accumulate, and remain on its road and right of way, and along its track near appellee's lands, as aforesaid; that the coals dropped from such locomotive, and the sparks of fire emitted therefrom, as aforesaid, set fire to such dry grass, weeds, rubbish, and other combustible substance and materials aforesaid, and that such fire, through the medium of such combustible materials, was then and there carelessly and negligently allowed, suffered, and permitted by appellant to communicate to appellee's lands aforesaid, and then and there burn such growing grass, a large lot of appellee's fence, which was then and there upon his lands, and of great value; and then and there and thereby, without fault or negligence on the part of appellee, said fire, by the negligence of appellant suffered to escape from its premises to appellee's lands, did then and there burn and totally destroy appellee's barn, and his lumber and agricultural implements therein, and the fence and growing grass aforesaid, to appellee's damage in the sum of $1,000; wherefore, etc.

It is claimed by appellant's counsel, with much apparent confidence, that this paragraph of appellee's complaint was bad on the demurrer for the want of facts, because it is not stated therein with sufficient certainty or clearness that appellee was free from fault or negligence before the fire escaped, by and...