Lake Erie And Western Railroad Co. v. Gossard

• Decision Date: 31 January 1896
• Docket Number: 1,626
• Citation: 42 N.E. 818,14 Ind.App. 244
• Parties: LAKE ERIE AND WESTERN RAILROAD COMPANY v. GOSSARD
• Court: Indiana Appellate Court

42 N.E. 818

14 Ind.App. 244

LAKE ERIE AND WESTERN RAILROAD COMPANY v. GOSSARD

No. 1,626

Court of Appeals of Indiana

January 31, 1896

From the Clinton Circuit Court.

The cause is reversed, with instructions to sustain the motion for a new trial.

Bayless Guenther & Clark, W. E. Hackedorn and

J. B Cockrum, for appellant.

J. T Hockman, for appellee.

ROSS J. GAVIN, C. J. and LOTZ, J., concur in result. DAVIS, J., concurs.

OPINION

ROSS, J.

The appellee brought this action and recovered judgment against the appellant in the sum of $ 100.00, for personal property destroyed by fire, alleged to have been permitted to escape, through appellant's negligence, from one of its locomotive engines.

The complaint is in three paragraphs, to each of which appellant demurred for want of facts, the demurrers were overruled and exceptions saved. The verdict of the jury and the judgment of the court rest upon the second paragraph, and the insufficiency of that paragraph is urged by appellant.

The theory upon which the second paragraph proceeds is not that appellant, after setting fire to its own right of way, negligently permitted the fire to escape therefrom, and to destroy appellee's property, but that appellant's negligence consisted in permitting the fire to escape directly from its locomotive engine to the property adjoining its right of way, from whence the fire spread to, and destroyed the hay and fences of appellee. The charges of negligence which appellee makes in his complaint are, it is true, very general, but so far as any objection has been pointed out by counsel for appellant, we think them sufficient as showing an actionable wrong.

The right of a railroad company to use fire to generate steam for the purpose of operating its locomotive engines cannot be questioned, and it is a matter of universal knowledge that the ingenuity of man has failed to construct an engine which can be successfully operated which will not permit the escape of fire at times. The right of a railroad company to use fire in the operation of its engines, therefore, relieves it from liability for injury to property resulting from the escape of fire which the operation of properly equipped engines necessarily permits; but if the company by reason of negligence permits fire to escape from its engines, and injury results therefrom, it is liable in damages therefor. The law, recognizing that fire will escape, casts the burden upon one seeking to recover damages for injury by fire from a locomotive engine, of alleging and proving negligence on the part of the railroad company in permitting it to escape. The law in conferring the right upon the railroad company to use fire in the operation of its road, and knowing its liability to escape and do injury does not accompany such right with a penalty. The right is granted without limitation, except that care be exercised in its use, so that such use may not cause unnecessary loss or injury to others.

The complaint before us makes the general charge that the appellant negligently permitted its engine to become out of repair, and negligently permitted fire to escape therefrom, and to destroy appellee's property, which allegations, under the authorities in this state, are sufficient. Cleveland, etc., R. W. Co. v. Wynant, 100 Ind. 160; Mississinewa Mining Co. v. Patton, 129 Ind. 472, 28 N.E. 1113.

The evidence introduced on the trial shows that on the 6th day of March, 1893, at about two o'clock in the afternoon, and five or ten minutes after one of appellant's freight trains had passed over its road near appellee's land, fire was discovered sixty-eight feet from the railroad track, and outside of appellant's right of way in the grass along the north side of a highway which was north of, adjoining, and parallel with, the railroad. The fire spread into the adjoining field and thence to appellee's hay and fence which were burned and destroyed. It also appears that after the train had passed the point where the fire was discovered and was beyond that point a quarter of a mile, sparks were seen to escape from the smoke stack of the engine. The engine attached to and pulling this train was equipped with the best known and approved spark-arrester and was in good condition and repair, and was operated and managed by competent, careful and skillful servants.

The appellant insists that under these facts the appellee is not entitled to recover. It is well settled in this State that the mere setting of a fire by a passing locomotive raises no legal presumption that it was the result of negligence. Indianapolis, etc., R. R. Co. v. Paramore, 31 Ind. 143; Pittsburgh, etc., R. W. Co. v. Hixon, 110 Ind. 225, 11 N.E. 285; Chicago, etc., R. R. Co. v. Ostrander, 116 Ind. 259, 15 N.E. 227.

The law granting the right to use fire for the purpose of operating locomotive engines, recognizing the fact that mechanical science has not achieved such perfection in the construction of such machinery that it can be so constructed that in its use sparks will not escape, presumes that if they do escape it was because they could not be prevented, hence the burden is cast upon the party seeking to recover damages for any injury therefrom, to prove more than the mere escape of the fire to show actionable negligence on the part of the railroad company.

"As negligence is the gist of the action against the company for injuries received from it while exercising its lawful right to...