Ohio And Mississippi Railway Company v. McCartney
| Decision Date | 09 January 1890 |
| Docket Number | 13,803 |
| Citation | 23 N.E. 258,121 Ind. 385 |
| Parties | The Ohio and Mississippi Railway Company v. McCartney |
| Court | Indiana Supreme Court |
From the Jefferson Circuit Court.
The judgment is affirmed, with costs.
H. D McMullen and J. McGregor, for appellant.
W. O Ford and C. A. Korbly, for appellee.
McCartney sued the railroad company to recover damages alleged to have been sustained by him on account of the destruction of certain property by fire, which the company negligently permitted to escape from its locomotive engines. It is averred in the complaint "that on the 7th day of November, 1885, while the defendant was running a locomotive over its tracks, sparks and fire escaped from the locomotive and negligently set fire to grass upon the plaintiff's land, and burned and destroyed," etc.; * * * "that said fire, injury and damage were not in any manner caused by the act, fault or neglect of the plaintiff, but wholly by the neglect and carelessness of the defendant."
It is urged that the demurrer to this complaint should have been sustained, because of the absence of any averment that the fire was permitted to escape through any negligence or fault of the company. The pleading is not aptly worded, but it is nevertheless fairly charged therein, in general terms, that the plaintiff's property was destroyed by fire which escaped from the defendant's locomotive engines, through its neglect and carelessness. As was said, in substance, in Pittsburgh, etc., R. W. Co. v. Jones, 86 Ind. 496: The averments in the complaint as to the imputed negligence of the appellant were not made in the usual form nor in the connection in which such averments are most appropriate in cases like this, but the concluding charge that the fire, injury and damage were caused wholly by the neglect and carelessness of the defendant, was sufficient to characterize all that had been done or permitted, as having been negligently done and permitted. Louisville, etc., R. W. Co. v. Hanmann, 87 Ind. 422.
It is a settled rule that a general charge of negligence, resulting in injury and damage, is sufficient as against a demurrer. Ohio, etc., R. W. Co. v. Walker, 113 Ind. 196, 15 N.E. 234; Hammond, etc., Co. v. Schweitzer, 112 Ind. 246, 13 N.E. 869.
It was assigned as a cause for a new trial "that the court erred in giving to the jury instructions numbered from one to seventeen inclusive." The overruling of the motion for a new trial is assigned as error here, and under this assignment some of the instructions are severely assailed. As will be seen, the motion for a new trial joins all the instructions together in general terms, without separating or pointing out any one or more as erroneous. Such an assignment, like a joint demurrer to separate paragraphs of a pleading, can only be maintained by showing that all the instructions are incorrect. It is an established rule that a motion for a new trial, which assigns as a cause that the court erred in giving or refusing instructions, must specify with reasonable certainty the particular instruction upon which error is predicated. Sutherlin v State, 108 Ind. 389, 9 N.E. 298; Grant v. Westfall, 57 Ind. 121; Rudolph v. Landwerlen, 92 Ind. 34. A joint assignment that the court erred in giving all of a series of instructions, without in some way separating them, does not specify with reasonable certainty any particular instruction. It requires the court to examine the whole series. It brings the instructions in review as a whole, in a body, and if any one of them is good the motion must...
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