New York, C. & St. L. Ry. Co. v. Roper

• Decision Date: 24 November 1911
• Docket Number: No. 21,884.,21,884.
• Citation: 96 N.E. 468,176 Ind. 497
• Court: Indiana Supreme Court
• Parties: NEW YORK, C. & ST. L. RY. CO. v. ROPER et al.

176 Ind. 497

96 N.E. 468

NEW YORK, C. & ST. L. RY. CO.

v.ROPER et al.

No. 21,884.

Supreme Court of Indiana.

Nov. 24, 1911.

Appeal from Circuit Court, Porter County; H. B. Tuthill, Judge.

Action by George W. Roper against the New York, Chicago & St. Louis Railway Company, in which the Farmers' Mutual Insurance Company of Lake County intervened as cross-complainant. Judgment for plaintiffs, and defendant appeals. Affirmed.

Transferred from the Appellate Court under Acts 1901, c. 259; Burns' Ann. St. 1908, § 1405.

Walter Olds, for appellant. C. B. Tinkham, W. J. McAleer, and Joseph H. Conroy, for appellees.

MORRIS, J.

Appellee Roper brought this action against appellant railroad company for damages for the alleged negligent destruction of a house by fire. The house in controversy was insured in the Farmers' Mutual Fire Insurance Company of Lake County for $800. The insurance company paid Roper this amount, and filed its cross-complaint in this action, to recover the amount paid with interest. The cause was tried by a jury which returned a verdict for appellee Roper for the sum of $1,700, and the further sum of $204 for interest, and that appellee insurance company be subrogated to the rights of the plaintiff in the sum of $800 and the further sum of $88 as interest thereon. From a judgment on the verdict this appeal is prosecuted by the railroad company. It is contended by appellant that the circuit court erred in overruling a demurrer to the amended complaint because actionable negligence is not alleged therein.

[1] The complaint alleges that plaintiff was the owner of a dwelling house on a tract of land over which the appellant's right of way was located, and which was used by appellant in running locomotives and cars; that appellant had negligently permitted dry grass and combustible material to accumulate and remain on the right of way near plaintiff's real estate and adjacent thereto; that defendant, in operating its locomotives and cars on the right of way near plaintiff's land, did by sparks and fire emitted from its locomotive set fire to the combustible material which it had negligently permitted to remain on its right of way; that defendant negligently permitted the fire so started upon its right of way to escape therefrom, and to pass over plaintiff's real estate to plaintiff's dwelling house and ignite the same, and as a result thereof the house was totally destroyed by burning; that the proximate cause of the burning of the house was the said negligence of defendant in permitting the combustible material to be on the right of way and permitting the fire to escape therefrom; that plaintiff was free from any fault or negligence which contributed to the injury. This is a sufficient allegation of negligence to repel a demurrer. Wabash, etc., R. Co. v. Johnson (1884) 96 Ind. 40;Baltimore, etc., R. Co. v. O'Brien (1906) 38 Ind. App. 143, 77 N. E. 1131;Pittsburgh, etc., R. Co. v. Wise (1905) 36 Ind. App. 59, 74 N. E. 1107.

[2] Appellant claims that the circuit court erred in refusing certain instructions the purport of which was to inform the jury that the plaintiff could not recover unless the evidence established the fact that the company set fire to the combustible material on the right of way, and that this error was not cured by any instruction given. On the other hand, appellee Roper insists that, if there was any error in respect to this question, it was harmless. Certain interrogatories were submitted by the court to the jury. The jury finds in its answer to the seventh interrogatory that the fire which destroyed the dwelling was caused by sparks from appellant's engine, and in its answer to the eighteenth interrogatory it finds that the fire originated on appellant's right of way. It thus appears that, if error be conceded, it was harmless because of the affirmative showing of facts by answers to interrogatories. Ellis v. Hammond (1901) 157 Ind. 267, 61 N. E. 565;Nichols v. Central Trust Co. (1909) 43 Ind. App. 64, 86 N. E. 878.

[3] It is urged that the court erred in refusing to give appellant's requested instruction No. 2. This instruction was drawn on the theory that appellant would not be liable unless it had been proven that appellant had knowledge of the fire on the right of way, and of the spreading of the same, prior to the burning of the building. Where the fire originates on the right of way by sparks from the locomotive, it is not necessary that the employés of the company should have knowledge or notice of its existence. Pittsburgh, etc., R. Co. v. Indiana Horse Shoe Co., 154 Ind. 322, 56 N. E. 766.

[4] Appellant maintains that the court erred in refusing to give a requested instruction informing the jury in substance that, if the jury found that appellant's right of way at the place where the fire originated was reasonably clean and free from combustible material, it would not be guilty of negligence. Instruction No. 12, given by the court, is as follows: “If the railroad company used a reasonable amount of active vigilance in keeping its right of way clean and free from weeds, grass, and leaves, brush, and other combustible matter, then it has discharged its duty, and by this rule is meant that it is not incumbent upon, and the law does not require, a railroad company to keep its right of way absolutely free from leaves, weeds, grass, and other articles that will burn. It does require it to exercise and use reasonable care in efforts to perform this duty, and reasonable care in this behalf is such care as a reasonably prudent man would exercise in preventing fires on his own premises and in preventing fires from igniting on his own premises and escaping thence to the lands of others. In other words, neither a railroad company nor an individual is required to guard against that which may not be reasonably anticipated to occur.” This instruction was fully as favorable to appellant on this question as was the requested instruction.

[5] Because the lower court failed to instruct the jury, as requested by appellant, on the subject of the measure of its duty with reference to the equipment of its engine with spark arresters, and its operation of the engine, error is assigned. It will be noted that the complaint does not charge any negligence in this matter, and the court properly charged the jury that the only negligence alleged was in permitting combustible material to accumulate and remain on the right of way, and in permitting fire, ignited in the combustible material, to escape therefrom to plaintiff's land and cause the loss in controversy. There was no error in refusing to give the requested instruction.

[6] Appellant has assigned as error the refusal of the trial court to give certain requested instructions relating to the right of the insurance company to be subrogated to the rights of the insured. Counsel assert that, inasmuch as the insurer cannot defend against the amount due on a fire policy because the fire was caused by the negligence of the insured or that of a third party, it ought not to recover from a third party whose negligence caused the fire. Counsel concede the effect of former decisions of this court, but maintain that they are erroneous. It is settled by the decisions of the Court of Appeal of this state that, where an insurance company pays to the insured a loss caused by the negligence of a railway company in burning the property insured, such payment amounts to an equitable assignment of so much of the claim of the one insured against the railroad company, and subrogates the insurance company to the rights of the assured; and, if the loss is greater than the amount of insurance, the insured may recover the excess from the railway. Phenix Ins. Co. v. Pennsylvania R. Co. (1893) 134 Ind. 215, 33 N. E. 970, 20 L. R. A. 405;Lake Erie & Western R. Co. v. Hobbs (1907) 40 Ind. App. 511, 81 N. E. 90;Pittsburgh, etc., R. Co. v. German Ins. Co. (1909) 44 Ind. App. 268, 87 N. E. 995. This court is not inclined to overthrow the doctrine announced in the above decisions.

[7] It is earnestly contended that the evidence is insufficient to sustain the verdict because there is no evidence that the fire was started by appellant. The wife of the tenant who occupied the house that was burned testified that she saw the noon train pass, and “right after it passed” she saw the fire on the right of way. Facts may be established by circumstantial, as well as by direct, evidence. We cannot say that the jury was not warranted in finding that the fire was caused by sparks from the passing locomotive.

[8] The court of its own motion instructed the jury as follows: “If the plaintiff and defendant, insurance company, used such an amount of active vigilance as a reasonably prudent person would under the circumstances,as detailed in the evidence, to protect his own, they are not guilty of contributory negligence. If, on the contrary, they did not so use such an amount of active vigilance as a reasonably prudent person would use under the circumstances detailed in evidence to protect his own, they are guilty of contributory negligence.” It is claimed that the above instruction was erroneous because it invades the province of the jury by stating, in effect, “that, if these parties exercised such amount of active vigilance as detailed in the evidence to protect their own, they are not guilty of contributory negligence.” The instruction is not justly chargeable with this construction. The jury would not have been warranted in taking the instruction as an indication of the court's opinion as to the weight of any evidence given, but only as defining the duty of plaintiff and the insurance company, and measuring that duty by the vigilance that a reasonably prudent person would exercise under the circumstances disclosed by the evidence.

[9] The court in an instruction given on its own motion instructed the jury as follows: “If you find from the evidence in this case that the...