Pittsburg, C., C. & St. L. Ry. Co. v. Indiana Horseshoe Co.

• Decision Date: 13 March 1900
• Citation: 154 Ind. 322,56 N.E. 766
• Parties: PITTSBURG, C., C. & ST. L. RY. CO. v. INDIANA HORSESHOE CO.
• Court: Indiana Supreme Court

154 Ind. 322

56 N.E. 766

PITTSBURG, C., C. & ST. L. RY. CO.

v.INDIANA HORSESHOE CO.

Supreme Court of Indiana.

March 13, 1900.

Appeal from circuit court, Wabash county; H. B. Shively, Judge.

Action by the Indiana Horseshoe Company against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Samuel Parker and N. O. & G. E. Ross, for appellant. Sayre, Slick & Hunter and H. J. Paulus, for appellee.

MONKS, J.

This action was brought by appellee against appellant to recover the value of a building, machinery, tools, and materials alleged to have been destroyed by fire through the negligence of appellant. Issue, trial, special verdict under the act of 1895, and judgment for appellee. The errors assigned, and not waived, are: “(1) The court erred in overruling appellant's motion to require appellee to make each paragraph of the complaint more specific, definite, and certain. (2) the court erred in overruling appellant's demurrer to the first paragraph of the complaint; (3) the court erred in overruling appellant's demurrer to the third paragraph of the complaint; (4) the court erred in overruling appellant's motion for a judgment in its favor over the special verdict; (5) the court erred in overruling appellant's motion for a new trial.”

As the motion to make each paragraph of the complaint more specific, definite, and certain, and the ruling of the court thereon, are not made a part of the record by a bill of exceptions or order of court, no question is presented by the record for our consideration. City of Seymour v. Cummins, 119 Ind. 148, 150, 21 N. E. 549, 5 L. R. A. 126;Boyce v. Graham, 91 Ind. 420, 421;Manufacturing Co. v. Millican, 87 Ind. 87, 89;Insurance Co. v. Doll, 80 Ind. 113, 115; Ewbank, Ind. App. Proc. § 26.

All the paragraphs of the complaint were withdrawn, except the first and third. The allegations in said first and third paragraphs concerning appellant's negligence are substantially the same as the complaint in Railway Co. v. Hart, 119 Ind. 273, 21 N. E. 753, 4 L. R. A. 549, which was held good. Under the law as declared in that case and the cases therein cited, each of said paragraphs was sufficient to withstand the demurrer for want of facts. The court did not err, therefore, in overruling the demurrer thereto.

There was no error in sustaining appellee's demurrer to the second paragraph of answer. The facts alleged in the first and third paragraphs of complaint show that the roadbed, tracks, and siding were under the exclusive control, use, management, and possession of appellant as a part of its right of way, and that appellant on the 22d day of August, 1895, and for a long time before that day, negligently suffered and caused the same to be covered over with dry weeds, grass, straw, paper, wood, and other rubbish adjacent to and adjoining the land on which appellee's factory and building were located. The theory of said second paragraph of answer to said paragraphs was that appellee was not entitled to recover because in the written contract entered into between appellant and appellee, by which appellant was to and did build a siding or switch from its main track to appellee's factory, appellee agreed to look after and keep it clean, and that it was negligent in permitting paper, weeds, and other combustible matter to accumulate thereon, and that the fire dropped from appellant's engine, started there, and spread therefrom to the factory. The part of said written contract which bears upon the question involved reads as follows: “The second party [appellee] agrees to exercise the greatest care in the management of the siding herein provided for; to prevent cars or other obstructions from getting out upon, or too close to, the main or other tracks; to secure the safe closing and locking of the main switch or switches, and to keep the inner safety switch (where such switch is provided) in proper position; also to use such means and care generally as will tend to avoid accidents of any kind.” It was expressly provided in said contract that appellant should have the right to use without cost the whole or any part of said switch in connection with other business than that of appellee, provided such use did not interfere with the business of appellee. The whole of said siding, including the part upon appellee's lot, was built by, and to be kept in repair by, appellant, and was the property of appellant, with the right to enter and remove the same upon notice. It is evident that the part of said contract included in quotation marks did not require appellee to keep appellant's right of way and tracks adjacent to appellee's lot upon which said factory was constructed free from and clear of combustible material such as described in the complaint. Said provision was made with reference to appellee's duties when using said siding for the convenience of its factory in receiving and shipping goods, and such duties were confined to the cars and other obstructions upon the switch for the transaction of that business, and the exercise of due care to avoid accidents of any kind arising from said use of the switch by appellee, and it was not its duty to give any attention or care to the right of way, track, or switch of appellant. Counsel for appellant calls attention to a clause in said contract in regard to appellee's duty in erecting buildings, and claims that appellee violated the same, but, as no breach thereof is alleged in said second paragraph of answer, we are not required to consider said clause.

It is next insisted that the facts found in the special verdict do not show that the injury and loss sued for occurred on account of the negligence of appellant, and without the fault of appellee. The substance of the facts found bearing upon this question is as follows: That on and prior to August 22, 1895, appellee owned a factory building on lot 18, in Tibbett's addition to the city of Marion, Ind., which was constructed of wood; said lot being 140 feet long north and south, and 72 feet wide, east and west, and abutted upon the north side of appellant's right of way. That on and prior to said day the appellant used and occupied a strip of ground about 7 1/2 feet wide off of the south end of appellee's said lot for its spur and part of its right of way. That from the center of appellant's main track to the north side of its said spur was about 47 1/2 feet. That on and prior to said day the appellant had charge and control of the right of way upon and along which its railroad ran through the city of Marion, and also had charge and control of the numerous switches and side tracks upon and along its said right of way through said city, and that said switches and side tracks extended east and west along the north and south sides of its main track, and from a point west of appellee's said lot to a point east thereof several hundred yards. That about three years prior to said day the appellant constructed said spur track upon and across said strip of ground off of the south end of said lot, and that during all of said time the same was used and maintained by appellant as a part of its right of way, as a place for storing its cars when not in use; and that all said switches and side tracks, including said spur, during all said time, were in common use by appellant for handling and storing its trains and cars; and that said strip of ground was in the exclusive occupancy and control of appellant. That appellee's said building was 69 feet wide from east to west, and the south end of said building was about 5 feet north of the north rail of said spur; and appellee maintained a wooden porch against and across the south end of said building, which was about 3 feet wide. That on and prior to said day, appellant, at the point where appellee's factory was located, and extending east and west thereof, maintained and used its main track, two side tracks south of said main track, one side track north of its said main track, and the spur track north of said north side track, and leadingto and along said porch of appellee's factory. That on said day the appellant's right of way opposite appellee's factory, from its north line to a point about three feet north of the north rail of its north side track, and for a distance of several feet east and west of appellee's lot, was covered with dry, combustible, and inflammable material, to wit, grass, weeds, straw, paper, shavings and wood, railroad ties, and other timber. That said weeds and grass were cut about two weeks before the 22d day of August, 1895, by appellant's servants and employés, and were left lying upon and along said right of way at the place named. That a large portion of said paper and straw was so upon said right of way by having been thrown or dropped from appellant's cars. That said combustible and inflammable matter had accumulated upon said right of way at least two weeks before said 22d day of August, 1895, and the employés of appellant upon whom rested the duty by their employment to remove from said right of way all such combustible matter and material during said summer of 1895, passed over said right of way at said point almost daily. That during the months of June, July, and August, 1895, the weather was very dry, and during said time said combustible matter became and was very dry, and highly inflammable, and was at all times during its existence there exposed to and in danger of ignition from appellant's engines; and was of such a character that a fire started therein would follow the same, and burn across the said switches to appellee's factory building. That the tracks and spur hereinbefore described constituted appellant's railroad yard at Marion, and appellee's factory was located on the north side and about the center of said yard; and appellant on and before said day kept a suitable engine at said city of Marion, and then had the same in daily use upon said...