Lake Erie and Western Railroad Company v. Naron

• Decision Date: 23 September 1897
• Docket Number: 2,230
• Citation: 47 N.E. 691,18 Ind.App. 193
• Parties: LAKE ERIE AND WESTERN RAILROAD COMPANY v. NARON ET AL
• Court: Indiana Appellate Court

47 N.E. 691

18 Ind.App. 193

LAKE ERIE AND WESTERN RAILROAD COMPANY v. NARON ET AL

No. 2,230

Court of Appeals of Indiana

September 23, 1897

From the LaPorte Circuit Court.

Affirmed in part, reversed in part.

Mortimer Nye, W. E. Hackedorn and J. B. Cockrum, for appellant.

M. H Weir and E. E. Weir, for appellees.

OPINION

ROBINSON, J.

Appellant appeals from a judgment in appellees' favor for the loss of certain property by fire.

The first paragraph of the complaint alleges, that for a long time prior to the 10th day of August, 1893, appellant had negligently and carelessly suffered and permitted dry grass weeds, and other combustible material to accumulate and remain on its right of way; that on said day fire was emitted from a locomotive, and ignited said material, and from thence said fire was negligently suffered and permitted by appellant to escape, and was communicated to grass and weeds on the lands of appellees, and to a dwelling house situated thereon, and burned said dwelling house and certain fruit trees, all without appellees' fault or negligence; that at the time of said fire the ground was in a very dry and parched condition, as was all kind of vegetation.

The second paragraph seeks to recover the value of certain fencing destroyed on the 14th day of the same month.

The special verdict shows, in substance, the following facts: On the 10th and 14th days of August, 1893, appellees were the owners of certain land on which were a frame dwelling house, fruit trees, and fencing; appellees' land adjoined appellant's right of way. On the 10th day of August the house and twelve fruit trees were destroyed by fire, and on the 14th of August thirty rods of fencing was burned. At the time they were burned, the house was worth $ 125.00, the trees $ 25.00, and the fencing $ 15.00; the house was about ten rods from a highway, and from three to five rods from appellant's railroad track, and the trees were situated around the house; the fence intersected the fence of appellant; for a month or more before the fires the weather had been very dry, and little or no rain had fallen, all vegetation in the locality of appellees' lands was in a very dry and parched condition; at the point where the right of way of appellant passed the house there had accumulated a large amount of very dry, dead, and parched grass and weeds, which appellant knew; the grass and weeds were about three feet high, but had fallen down and were matted on the ground, and extended from the roadbed on the right of way to the fence dividing the right of way from appellees' lands, and were easily ignited; there was nothing to prevent the fire, after having been ignited on the right of way opposite the house, from spreading to appellees' lands; appellant had not cleaned its right of way of grass and weeds for a long time before the fire; on appellees' land between the house and right of way there was standing dead dry grass about six inches high; sparks of fire from locomotives on the 10th and 14th days of August set fire to the grass and weeds on the right of way, and communicated to grass and weeds on appellees' land, and burned the house and fencing and killed and destroyed the fruit trees; the house was unoccupied, and none of the appellees knew of either fire until after it had occurred; that appellees were entitled to $ 125.00 for the burning of the house, $ 25.00 for the fruit trees, and $ 15.00 for the fence, in all $ 165.00; there was no evidence whether any of the appellees were present at either fire; on the 10th of August the wind was in the southwest, and the fire was first discovered between 3 and 4 o'clock in the afternoon; fire was first discovered in the southwest corner of the house; the locomotive set out the fire on the west side of the track on the right of way; the fire got to the building by running in the dry grass and weeds from the railroad to the building; the fire that burned the house started on the right of way.

The only question discussed by appellant's counsel is that the special verdict is not sustained by the evidence. it is argued that there is no evidence that the fire on the 10th of August started on the right of way and that it escaped from the right of way to appellees' property.

The evidence as to the origin of the fire on the 10th of August was, in substance, as follows:

Alfred Blank testified that he lives about a half a mile northeast of the house that was burned; he first saw smoke, had seen a locomotive go south a short time before that; when he saw the smoke he went up on a hill about half way to the fire and saw the house burning; he went over to the fire; no one was there; saw fire on right of way west of the track; grass was burning there; the house was burning on the south side; took fire on the southwest side; the southwest corner was on fire when he got there; John Swanson and Mr. Hultgreen came soon after; "Swanson and I killed the fire to keep it from going to the barn; don't remember that the grass was burning east of the track, a wide strip between the railroad track and the house was burned over; when first got there the flame was coming out next to the roof; don't know whether it was burning clear down to the ground or not." On cross-examination the witness testified: "Don't remember to have seen any of the section men there that day; could not see the house from where was at work when first saw the smoke; had been there about a minute or two when the fire broke out of the roof; think the fire was between the plaster and outside batting; after the house burned down found the grass had been burned on the railroad; could not say when the grass burned--when it started." On re-direct examination: "Q. You saw that it was burning on the right of way and over into the place when you first went there?" "A. It was burning in the place, yes, sir." Re-cross-examination: "Didn't look anywhere about the right of way until put out the fire that was running toward the barn, and when that was completed saw that it had burned on the right of way." Re-direct examination: "Don't know whether looked right of way or not; crossed the right of way several rods below the house and don't know whether it had burned there or not; the grass was burned all about the house when he got there, and about half way to the barn." Re-cross-examination: "Didn't look when I got there whether it was burning all around the house and don't know whether it was or not."

John...