Louisville, New Albany and Chicago Railway Company v. Roberts

• Decision Date: 05 October 1897
• Docket Number: 2,225
• Citation: 47 N.E. 839,18 Ind.App. 538
• Parties: LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY v. ROBERTS
• Court: Indiana Appellate Court

47 N.E. 839

18 Ind.App. 538

LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY v. ROBERTS

No. 2,225

Court of Appeals of Indiana

October 5, 1897

Rehearing denied December 7, 1897.

From the Pulaski Circuit Court.

Reversed.

E. C Field, W. S. Kinnan and J. C. Nye, for appellant.

W. and J. M. Spangler and Elliott & Elliott, for appellee.

HENLEY J. ROBINSON and WILEY, JJ., absent.

OPINION

HENLEY, J.

Appellee recovered a judgment in the lower court against appellant for $ 1,280.00. The complaint was in two paragraphs, both substantially the same, wherein it was charged that appellant negligently permitted combustibles to accumulate and remain on its right of way; that the same were ignited by sparks from its locomotive, and that the fire so kindled was, by appellant, negligently permitted to escape from the right of way of appellant and spread over and burn appellee's property, without fault or negligence on the part of appellee. Both paragraphs of complaint were held good upon demurrer. Appellant answered by the general denial. The cause was submitted to a jury and a special verdict returned. Appellant's motion for judgment on the special verdict was overruled, and judgment rendered in favor of appellee. Appellant moved to modify the judgment, which motion the court overruled.

The alleged error of the court in overruling appellant's motion for judgment upon the special verdict is the first point discussed by counsel. It is contended that the verdict does not show appellee's freedom from fault. It is as necessary that this should be shown in the verdict as it is that appellant's negligence should be shown before there could be a judgment rendered thereon by the court, and the burden was upon the appellee to show his freedom from fault. Cleveland, etc., R. W. Co. v. Hadley, 12 Ind.App. 516, 40 N.E. 760.

The judgment of the court must be upon the facts as they are found in the special verdict. It cannot be aided by the evidence, neither can the court indulge in intendments in aid of it. That part of the verdict which counsel for appellee insist is sufficient to show appellee's freedom from fault is as follows: "Q. What effort did plaintiff make to prevent his hay and land from being burnt by the fire September 5, 1893? Ans. Done all he could. Q. Did the plaintiff do all in his power to prevent the fire from reaching his land and burning his property? Ans. Yes."

If these questions and answers do not furnish the facts from which the conclusion of freedom from fault can be drawn by the court, then the verdict is silent upon this issue. What did the appellee do to prevent the destruction of his property? No primary facts are given by which the court could determine whether appellee was negligent or free from fault. The answer, "Done all he could," is a conclusion of the jury which, if we concede it to mean that he did all an ordinarily prudent man would have done under like circumstances, might have been proper under some of the decisions of our courts, but in no case has it been held that such a finding was proper without the statement of the primary facts leading up to it. A special verdict must contain facts only. When the facts are found by the jury, they become the undisputed facts of the case, and the question of negligence or freedom from fault becomes a pure question of law for the court. If negligence is a mixed question of law and fact, it becomes a pure legal question after the facts are found.

In the case of Conner v. Citizens Street R. W Co., 105 Ind. 62, 4 N.E. 441, the Supreme Court, by Mitchell, J., said: "A civil case cannot be conceived of in which it is the province of the jury by special verdict to determine the facts, and also to draw inferences in the nature of legal conclusions upon the facts found. When the jury find and return a special verdict, it must then be considered that the facts in that case are no longer in dispute. They are ascertained and settled by the special verdict. Unless it can be maintained that the inference or conclusion which may be drawn from all the ascertained and undisputed facts is also a fact, it must follow that it is not the province of the jury to draw inferences or state conclusions. It is settled by decisions so numerous that we need not cite the cases, that where the facts are undisputed it is the province...