Ohio & M. Ry. Co. v. Wrape

CourtCourt of Appeals of Indiana
Citation30 N.E. 428,4 Ind.App. 100
PartiesOHIO & M. RY. CO. v. WRAPE.
Decision Date02 March 1892

OPINION TEXT STARTS HERE

Appeal from circuit court, Jennings county; T. C. BATCHELOR, Judge.

Action by John Wrape against the Ohio & Mississippi Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

G. F. Lawrence, for appellant. A. G. Smith and Wm. Fitzgerald, for appellee.

CRUMPACKER, J.

This action was commenced by Wrape against the railroad company to recover damages caused by fire which escaped from the right of way to the plaintiff's premises through the alleged carelessness of the defendant. The first paragraph of complaint alleges that plaintiff was the owner of a tract of land adjoining the defendant's right of way, upon which was growing timber; that the defendant carelessly and negligently allowed dry leaves, grass, and other combustiblerubbish to accumulate and remain upon its right of way, and, in operating locomotive engines upon its railroad, such combustible rubbish was set on fire, and the defendant carelessly permitted the fire so set out to escape from the right of way, and enter upon plaintiff's said premises, where it spread over his woodland, “then and there injuring, killing, and destroying five hundred young oak and poplar trees growing upon said land, of the value of one dollar each;” that the injury occurred without any fault or negligence upon the part of the plaintiff. The second paragraph, in legal aspect, is the same as the first, but it alleges the injuring, etc., of 2,800 young oak and poplar trees, of the value of 25 cents each. The cause was put at issue, and tried by a jury. A verdict was returned in favor of plaintiff, upon which judgment was rendered. The defendant appeals, and assigns a number of grounds of error.

The first question for consideration arises upon exceptions to the overruling of appellant's motion to make each paragraph of complaint more specific. This motion seeks to require the complaint to state more particularly the acts or omissions which constituted appellant's negligence in permitting the fire to escape from the right of way; also to state the number of trees that were “injured,” the number “killed,” and the number “destroyed,” and the size and value of each; also the number and particular kinds of oak, the number of poplar, and a specific classification of all other kinds for which damages are claimed. Reasonable certainty is all that can practically be accomplished in pleading. The complaint charges negligence in permitting the fire set out by appellant to escape from its right of way. This is a negative averment, showing, by necessary implication, a failure to take ordinary precautions to prevent its escape; and it is obvious that it would be a difficult task, and one entirely beyond the province of pleading, to negative specifically every possible method by which the escape of the fire might have been prevented. This identical question was decided adversely to the position of appellant by this court in the case of Railroad Co. v. Barnes, 2 Ind. App. -, 28 N. E. Rep. 328, and we see no reason for departing from the rule announced in that case. Respecting the other phases of the motion, they relate to mere matters of evidence, which must have been treated as surplusage in the complaint, had it satisfied the requirements of the motion. Pennsylvania Co. v. Zwick, 1 Ind. App. 280, 27 N. E. Rep. 508. There was no error in overruling the motion.

With the answer appellant filed a number of interrogatories, and obtained an order of court requiring the appellee to answer them under oath. After such answers were filed, appellant moved for an order requiring them to be made more definite and certain. The interrogatories sought to elicit a specific description of the...

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