Lake Erie & Western Railroad Company v. McFall

• Decision Date: 07 December 1905
• Docket Number: 20,437
• Citation: 76 N.E. 400,165 Ind. 574
• Court: Indiana Supreme Court
• Parties: Lake Erie & Western Railroad Company v. McFall

76 N.E. 400

165 Ind. 574

Lake Erie & Western Railroad Company v. McFall

No. 20,437

Supreme Court of Indiana

December 7, 1905

From Hamilton Circuit Court; William S. Christian, Special Judge.

Action by Melissa McFall against the Lake Erie & Western Railroad Company. From a judgment on a verdict for plaintiff for $ 150, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Reversed.

John B Cockrum and Shirts & Fertig, for appellant.

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

OPINION

Gillett, C. J.

Action by appellee against appellant to recover damages for alleged negligence in permitting sparks to escape from its locomotive and fall upon the barn of appellee, whereby the barn was set on fire and destroyed. The complaint was in three paragraphs to each of which a demurrer was overruled. There was an answer in general denial. The jury found in favor of appellee on each paragraph of her complaint, and judgment was rendered for appellee for the amount assessed in the verdict.

It is claimed by counsel for appellant that none of said paragraphs contains a sufficient charge of negligence. The first paragraph alleges that on April 25, 1902, the defendant was operating a line of railroad running east and west through the village of Hobbs, in Tipton county, Indiana; that there was in said village on said day, and for a long time prior thereto had been, a large number of wooden buildings, consisting of houses, stables and other structures, standing on either side of defendant's track and in close proximity thereto, and, among others, that there was a barn or stable owned by plaintiff, of the value of $ 150, situated about one hundred feet north of said track; that on said day there was a wind blowing from the south or southwest across defendant's track and in the direction of plaintiff's barn or stable; that it was at that time, and it had been for a long time prior thereto, unusually dry, making said building highly inflammable and easily set on fire by sparks or coals of fire; that on said day defendant, in running its locomotives and trains of cars over its tracks, carelessly, negligently and wrongfully failed and omitted to use safe and sufficient spark-arresters or other proper appliances to prevent the emission of sparks and fire from said locomotives, and negligently, carelessly and wrongfully ran and operated said locomotives at a high and unnecessary head or amount of steam and draft, thereby causing said locomotives to emit and throw out unusually large and dangerous sparks and coals of fire, which said sparks and coals of fire defendant negligently and carelessly suffered and permitted to be so emitted and thrown by said locomotive and carried and spread by said wind off of its right of way and to, upon and against plaintiff's barn or stable, igniting and setting the same on fire, whereby the same was, without any negligence or carelessness on her part, burned and destroyed, to her damage, etc. The paragraph further alleges matter of excuse for failing to set out what mechanism and construction of spark-arrester could or should have been used.

The second paragraph, after alleging the general situation and the condition of drought, as in the first paragraph, and alleging that said conditions were known to the employes of defendant before they had reached or attempted to pass through said village, contains the following: "Yet, notwithstanding all of which, said defendant, its agents and employes, so engaged in operating and running one of its locomotives and passenger-train of cars attached thereto over its track through said town in the afternoon of said day, negligently and carelessly failed and omitted to exercise that degree of care and caution in operating and running said locomotive and train of cars through said village on said day proportionate to the increased danger and risk of setting fire to said building from sparks and coals of fire thrown from said locomotive in running through said village, but negligently and carelessly and wrongfully so ran and operated said locomotive and train of cars through said village at such a high rate of speed and excessive head and amount of steam, unnecessarily overtaxing the power of said locomotive, thereby causing it to emit and throw out unusually large and dangerous sparks and coals of fire, which the defendant, its agents and employes negligently and carelessly so suffered and permitted to be so emitted and thrown out and carried by said wind off of the defendant's right of way to and against said barn or stable of the plaintiff, thereby igniting and setting the same on fire and completely burning it up and destroying it, without any carelessness or negligence on the part of the plaintiff; that the plaintiff, for the want of sufficient knowledge, is unable to set out the facts constituting the negligence of the defendant more specifically than as herein set out."

The third paragraph is substantially the same as the second in respect to the allegations of preliminary facts, but its allegations concerning negligence are: "That said defendant negligently and carelessly failed and omitted to exercise that degree of care and caution proportionate to the increased risk and hazard on account of the conditions above stated, but carelessly and negligently ran one of its passenger-trains, in the afternoon of said day, over its said track through said town at an unusual and excessive rate of speed; that by reason of which unusual and excessive rate of speed and excessive pressure of steam in said locomotive, great and unusual quantities of dangerous sparks and coals of fire were emitted and thrown from said engine, which said defendant carelessly and negligently suffered and permitted to be so emitted and thrown from said engine and carried and spread by said wind so blowing off of the defendant's right of way and into and against the plaintiff's barn or stable, igniting and setting the same on fire, whereby the same was burned up and totally destroyed, without any carelessness or negligence on the part of the plaintiff."

It is clear that the first paragraph of the complaint contained a sufficient charge of negligence in respect to the operation of the locomotive. It is also our opinion that, considering the entire allegation relative to the spark-arrester, the paragraph mentioned contained a sufficient charge of negligence in permitting fire to escape and destroy appellee's barn. Chicago, etc., R. Co. v. Kreig (1899), 22 Ind.App. 393, 53 N.E. 1033. "Safe" and "sufficient" are relative terms when applied to a spark-arresting device, and the word "prevent" was evidently used by the pleader in the sense of to hinder, check or retard. The record discloses that the question whether the spark-arrester in the locomotive which set the fire was of standard pattern and in good order, was fully laid before the jury, and it further appears that the jury was correctly instructed as to the measure of appellant's duty in that respect. The pleading therefore comes to us to thoroughly impressed with the theory which the trial stamped upon it that we do not feel at liberty to assume that it was the purpose of the pleader in effect to treat appellant as an insurer with respect to the sufficiency of the appliance. In other words, it is a case where the construction suggested by us above must be given the pleading, to the end that the theory of the parties below and of the trial court shall be the accepted theory here.

As to the second paragraph, we think it plain that it...