Lake Erie & Western Railroad Company v. Ford

• Decision Date: 23 October 1906
• Docket Number: 20,875
• Citation: 78 N.E. 969,167 Ind. 205
• Court: Indiana Supreme Court
• Parties: Lake Erie & Western Railroad Company v. Ford

78 N.E. 969

167 Ind. 205

Lake Erie & Western Railroad Company v. Ford

No. 20,875

Supreme Court of Indiana

October 23, 1906

From Hamilton Circuit Court; Ira W. Christian, Judge.

Action by Lewis Ford against the Lake Erie & Western Railroad Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Reversed.

John B Cockrum, Shirts & Fertig and Hawkins & Smith, for appellant.

Dan Waugh, Kane & Kane and Nash & Teter, for appellee.

OPINION

Gillett, J.

Complaint by appellee to recover damages for loss of property by fire by reason of the alleged negligence of appellant. There was a verdict and judgment in favor of appellee. The question of the sufficiency of the complaint on demurrer is raised, but no useful purpose would be subserved by setting out the entire substance of that pleading. The first paragraph charged negligence, as respects the locomotive and its management, as follows: (a) Omitting to use a safe and sufficient spark-arrester; (b) using a spark-arrester with unusually large and dangerous holes therein; (c) operating the locomotive with the trap-door down, thereby increasing the draft; (d) operating the locomotive with a high and unusual pressure of steam. Each and all of said acts and omissions are charged as the cause of the emitting of great and unusual quantities of large and dangerous coals and brands of fire, whereby a fire was set adjacent to the right of way, which spread to the property of appellee and destroyed it. The averments of said paragraph conclude with the allegation of certain matters pleaded by way of excuse, and as the principal objection which is offered to said paragraph is the claim that the pleading of such matters negatives the prior showing of proximate cause in the setting of the initial fire, it seems important to make a more particular statement of said concluding allegations. They are as follows: "That the plaintiff has had no experience with or knowledge of the mechanism or construction of locomotives or spark-arresters, or their management or operation, and has had no opportunity to make an examination or inspection of said locomotive or spark-arrester, as the same has been in the exclusive possession and control of the defendant, Lake Erie & Western Railroad Company, ever since; that all of the facts and information are and were at the time peculiarly within the knowledge of the defendant, Lake Erie & Western Railroad Company, therefore, the plaintiff cannot set out more specifically, than as herein set out, what mechanism or construction could or should have been used, or in what respect the spark-arrester was insufficient or unsafe, or whether said defects consisted in construction, or in not keeping the same in repair, and the plaintiff is also unable, for want of sufficient knowledge, to set out the facts constituting the negligence of the defendant, Lake Erie & Western Railroad Company, more specifically than as herein set out."

In view of the fact that various acts of negligence may be charged in one paragraph, and that, as against a demurrer, it is competent, in a very general way, to predicate an averment of negligence upon an act or omission, it seems that it was quite unnecessary, at least in the first instance, to have added the averments in question. We have concluded, however, that they do not have the effect of negativing in any essential degree the matter which precedes. They relate to the spark-arrester, and not to the negligent operation of the locomotive, and, so far from negativing the prior allegations, the matter in question, aside from the immaterial statement that the plaintiff could not allege whether the defects in the spark-arrester consisted in a defect of construction or a failure to keep in repair, consisted of matter of excuse for a failure to plead more specifically what was already quite sufficiently pleaded as against the assault of a demurrer. The mere facts that plaintiff had never seen the particular spark-arrester, and that all the facts concerning it were peculiarly within the knowledge of the defendant, do not lead to the inference that he could not establish sufficient facts concerning it to warrant a recovery under said paragraph. If he could not do this by the testimony of appellant's servants, it was nevertheless open to him to do so by the method of exclusion, viz., the elimination of every possible cause, aside from those charged, for the emitting of large and dangerous sparks and coals of fire.

Answering a further objection of appellant to said paragraph of complaint, we have to say that as a matter of pleading it was unnecessary to allege facts showing that it had notice or knowledge of the existence of holes in the spark-arrester caused by the bending or springing of the wires. This was covered by the averment of negligence. Brookville, etc., Turnpike Co. v. Pumphrey (1877), 59 Ind. 78, 26 Am. Rep. 76; Ohio, etc., R. Co. v. Collarn (1881), 73 Ind. 261, 38 Am. Rep. 134; Turner v. City of Indianapolis (1884), 96 Ind. 51; Town of Spiceland v. Alier (1884), 98 Ind. 467; Cleveland, etc., R. Co. v. Wynant (1885), 100 Ind. 160; Pittsburgh, etc., R. Co. v. Kitley (1889), 118 Ind. 152, 20 N.E. 727; Rodgers v. Baltimore, etc., R. Co. (1898), 150 Ind. 397, 49 N.E. 453; Indiana, etc., Traction Co. v. Jacobs (1906), ante, 85, and cases cited. We regard the first paragraph of the complaint as sufficient, and the considerations suggested lead to the conclusion that the objections of appellant's counsel to the second paragraph of the complaint are not well taken.

Appellant was not entitled to judgment in its favor on the answers to interrogatories. It would serve no useful purpose to set them out. They fail to disclose that the setting of the fire was not the proximate cause of the destruction of appellee's property, and, so far as the matter of variance is concerned, in respect to the finding that the fire started in a manure pile, instead of in the adjoining barn, as alleged, we have to say that the question cannot be raised on answers to interrogatories. Consumers' Paper Co. v. Eyer (1903), 160 Ind. 424, 66 N.E. 994; Hartwell Bros. v. Peck & Co. (1904), 163 Ind. 357, 71 N.E. 958; M. S. Huey Co. v. Johnston (1905), 164 Ind. 489, 73 N.E. 996.

Appellant complains of appellee's instructions five and six, which were given by the court in the order indicated by their numbers. They are as follows: "(5) It is the duty of a railroad to use all reasonable precaution in running and operating its trains, and in providing its engines with proper spark-arresters, so as to prevent injury to the property of others by sparks or fire emitted or thrown therefrom. (6) If you believe from all of the evidence and circumstances in the case that at the time and prior to the destruction of the property of the plaintiff, as alleged in his complaint, there were a number of wooden buildings and structures standing on either side of the defendant's track and in close proximity thereto including the barn or stable of said Melissa McFall in the town of Hobbs, and at such time it was, and for some time prior thereto it had been, unusually dry, thereby rendering such wood buildings and structures, including the barn or stable of said Melissa McFall, and also the property of the plaintiff herein, unusually dry, inflammable and easily set on fire by sparks and coals of fire emitted from defendant's engines in passing through said town, and that there was also at the time, and for several hours prior thereto...