New York, Chicago & St. Louis Railway Company v. Roper

• Decision Date: 24 November 1911
• Docket Number: 21,884
• Parties: New York, Chicago and St. Louis Railway Company v. Roper et al
• Court: Indiana Supreme Court

96 N.E. 468

176 Ind. 497

New York, Chicago and St. Louis Railway Company v. Roper et al

No. 21,884

Supreme Court of Indiana

November 24, 1911

From Porter Superior Court; Harry B. Tuthill, Judge.

Action by George W. Roper against the New York, Chicago and St Louis Railway Company and another. From a judgment for plaintiff, defendant railway company appeals. Transferred from Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.

Affirmed.

Walter Olds and John H. Clarke, for appellant.

W. J McAleer and Joseph H. Conroy for appellee George W. Roper and C. B. Tinkham for appellee Farmers Mutual Fire Insurance Company.

OPINION

Morris, J.

Appellee Roper brought this action against appellant for damages for the alleged negligent destruction of a house by fire. Said house 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, and a verdict returned for appellee Roper for $ 1,700, and $ 204 interest. There was a finding that appellee insurance company should be subrogated to the rights of plaintiff Roper in the sum of $ 800, and for 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.

The complaint alleges that plaintiff Roper was the owner of a dwelling-house on a tract of land upon which defendant's right of way was located, over which it ran its locomotives and cars; that defendant had negligently permitted dry grass and combustible material to accumulate on the right of way near said plaintiff's real estate; that defendant, in operating its locomotives and cars on the right of way near said plaintiff's land, did, by sparks and fire emitted from its locomotive, set fire to the combustible material that 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 said plaintiff's real estate to his dwelling-house, and to ignite it, and as a result thereof the house was totally destroyed; that the proximate cause of the burning of the house was the negligence of defendant in permitting the combustible material to be on the right of way, and in permitting the fire to escape therefrom; that said plaintiff was free from any fault or negligence that 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.

Appellant claims that the circuit court erred in refusing certain requested instructions, the purport of which was to inform the jury that said appellee 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 that 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. City of Hammond (1901), 157 Ind. 267, 61 N.E. 565; Nichols v. Central Trust Co. (1909), 43 Ind.App. 64, 86 N.E. 878.

It is urged that the court erred in refusing to give appellant's requested instruction number two. This instruction was drawn on the theory that appellant would not be liable, unless it had been proved that it had knowledge, prior to the burning of the building, that there was fire on the right of way, and that it was spreading. Where the fire originates on the right of way and is caused by sparks from the locomotive, it is not necessary that the employes of the company should have knowledge or notice of its existence. Pittsburgh, etc., R. Co. v. Indiana Horseshoe Co. (1900), 154 Ind. 322, 56 N.E. 766.

Appellant maintains that the court erred in refusing to give a requested instruction informing the jury, in substance, that if it 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 twelve, 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, leaves, brush and other combustible matter, then it 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 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.

Error is assigned 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 equipping its engines with spark-arresters, and operating its engines.

The complaint does not charge any negligence in this matter, and the court properly charged that the only negligence alleged was in permitting combustible material to accumulate and remain on the right of way, and in permitting fire, ignited therein, to escape from the right of way to said plaintiff's land and cause the loss. There was no error in refusing to give the requested instruction.

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 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 courts of appeal of this State, that where an insurance company pays the insured for 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 company. Phenix Ins. Co. v. Pennsylvania R. Co. (1893), 134 Ind. 215, 20 L. R. A. 405, 33 N.E. 970; Lake Eric, etc., 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 cases just cited.

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.

The court on its own motion instructed the jury as follows: "If 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 said instruction was erroneous, because it invades the province of the jury by stating, in effect, "that if these parties exercised such an 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 Roper 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.

The court, on its own motion, instructed the jury as follows "If...