Over v. Dehne

Decision Date16 February 1906
Docket Number5,382
Citation76 N.E. 883,38 Ind.App. 437
PartiesOVER v. DEHNE
CourtIndiana Appellate Court

38 Ind.App. 427. At 437.

Original Opinion of October 10, 1905, Reported at: 38 Ind.App. 427.

OPINION

ON PETITION FOR REHEARING.

ROBY C. J.

The petition for rehearing is supported by an earnest argument in the course of which attention is called to statements of fact contained in the opinion thought to be imperfect. It is true that the evidence shows the foundry to have been operated since 1872, but the statement that it had been owned and operated "for more than twenty years" gives the appellant the full benefit of that fact. Other corrections suggested are regarded as immaterial. Those of a clerical nature will of course be made. The contention that circumstances were shown consistent with appellant's claim that the fires complained of originated otherwise than as charged by appellee is conceded, but there was conflicting evidence upon the subject, and the conclusion reached by the trial court cannot therefore be disturbed.

The fact that appellant had operated his foundry more than twenty years may have a bearing upon his right to continue to operate the foundry in a usual and proper manner, but it does not in anywise affect his liability on account of a negligent or improper manner of operation by which surrounding property is imperiled and a nuisance created.

It is alleged in the complaint "that the defendant can arrange and operate his said cupola so that said sparks, smoke, ashes and chunks of burning wood will not be carried upon, into and through his house as aforesaid." The averment is not its own proof, but there is evidence tending to show that the cupola was operated in a manner calculated to injure adjoining property. The particular precautions which ought to have been taken are not pointed out perhaps, but the inference that a more careful method of operation would have prevented the matters of which complaint is made was not unreasonable. The record was prepared prior to the consideration by the courts of that section of the act of 1903 (Acts 1903, p. 338, § 8, § 641h Burns 1905) requiring the appellate tribunal to weigh the evidence in certain classes of cases, and the assignments of error were properly drawn to cover and present every phase of the case. That they were ineffective for the purpose intended was no fault of the counsel. The case made tends to establish an improper...

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26 cases
  • Dean v. Wabash Railroad Company
    • United States
    • Missouri Supreme Court
    • June 22, 1910
    ... ... 234; Mfg. Co. v ... Cunningham, 73 Mo.App. 382. (3) The court allowed ... improper hypothetical questions to be asked over the ... objections of the defendant. Root v. Railroad, 195 ... Mo. 377; Russ v. Railroad, 112 Mo. 45; DeMaet v ... Storage Co., 121 Mo.App ... ...
  • Cooley v. Kelley
    • United States
    • Indiana Appellate Court
    • December 8, 1911
    ...as numbered above is included in the statute, and cannot be considered on appeal. Over v. Dehne (1906), 38 Ind.App. 427, 431, 75 N.E. 664, 76 N.E. 883. questions arising on the motion for a new trial remain for consideration: (1) Had the Probate Court of Allen County, Ohio, jurisdiction to ......
  • Cooley v. Kelley
    • United States
    • Indiana Appellate Court
    • December 8, 1911
    ...as numbered above is included in the statute, and cannot be considered on appeal. Over v. Dehne, 38 Ind. App. 427, 431, 75 N. E. 664, 76 N. E. 883. Two questions arising on the motion for a new trial remain for consideration: (1) Had the probate court of Allen county, Ohio, jurisdiction to ......
  • Beavers v. Bess
    • United States
    • Indiana Appellate Court
    • March 24, 1915
    ...upon the weight of conflicting evidence under such circumstances is conclusive on appeal. Over v. Dehne, 38 Ind. App. 427, 75 N. E. 664, 76 N. E. 883;Parkison v. Thompson, 164 Ind. 609, 73 N. E. 109, 3 Ann. Cas. 677;United States, etc., Paper Co. v. Moore, 35 Ind. App. 684, 72 N. E. 487, 74......
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