Pittsburgh, Cincinnati And St. Louis Railway Company v. Hixon
| Decision Date | 31 March 1887 |
| Docket Number | 10,787 |
| Parties | The Pittsburgh, Cincinnati and St. Louis Railway Company v. Hixon |
| Court | Indiana Supreme Court |
From the Lake Circuit Court.
The judgment is affirmed, with costs.
N. O Ross and G. E. Ross, for appellant.
E Griffin and C. F. Griffin, for appellee.
Errors are assigned here in this cause by appellant, the defendant below, which call in question the overruling of (1) its demurrers to each of the paragraphs of appellee's complaint, (2) its motion for a venire de novo, (3) its motion for a new trial, and (4) its motion in arrest of judgment.
The cause is now here for the second time. On the former appeal herein, the opinion and decision of this court are reported under the title of Pittsburgh, etc., R. W. Co. v Hixon, 79 Ind. 111. It was there said "Following the case of The Pittsburgh, etc., R. W. Co. v. Culver, 60 Ind. 469, the complaint in the case at bar must be held insufficient for want of an averment that the fire was permitted to escape upon the plaintiff's land by the negligence of the appellant," etc.
The judgment below was then reversed, and the cause was remanded for a new trial, with instructions to permit the appellee to amend each paragraph of his complaint. After the return of the cause into the court below, appellee amended each paragraph of his complaint in accordance with the opinion of this court on the former appeal herein, by averring therein that the coals negligently dropped and sparks emitted from appellant's locomotive engine set on fire an accumulation of dry grass, weeds, rubbish and other combustibles, negligently suffered to gather beside appellant's railroad track and on its right of way, and said fire, through the medium of such dry grass, weeds, rubbish and other combustibles, so gathered on its right of way, was by appellant negligently allowed to escape from its right of way and communicate to appellee's lands, and to the roots of the growing grass and the hay in his field, and his hay so stacked in such field, thereby burning and consuming all such hay, etc. These additional facts were amply sufficient, we think, to supply the averment for the want of which it was held, on the former appeal herein, that each paragraph of appellee's complaint was bad on the demurrer thereto, for the want of sufficient facts.
Appellant's learned counsel also claim, that each paragraph of the complaint was bad on the demurrer thereto, because the appellee did not aver in either paragraph, with sufficient clearness and certainty, that the burning of and damage to his property occurred without any contributory fault or negligence on his part. Upon this point it was averred by appellee in each paragraph of his complaint, that the "fire and damage aforesaid were not caused by any negligence on the part of plaintiff."
We are of opinion that this averment, construed as it ought to be under the provisions of our civil code, completely negatived the idea even that the fire and damage, of which appellee complained, were caused or occasioned in any degree or manner, or to any extent, by any contributory fault or negligence on the part of the appellee. In section 376, R. S. 1881, which is substantially a re-enactment of section 90 of the civil code of 1852, it is provided as follows: "In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties; but when the allegations of a pleading are so indefinite or uncertain, that the precise nature of the charge or defence is not apparent, the court may require the pleading to be made definite and certain by amendment." Indiana, etc., R. W. Co. v. Dailey, ante, p. 75.
Construing the allegations of each paragraph of appellee's complaint herein, as we must, in accordance with these statutory provisions, it must be held, we think, that the court below committed no error in overruling appellant's demurrers to each paragraph of such complaint, upon either of the grounds of objection thereto suggested in argument, by its counsel. The very utmost that can be correctly said against any of the allegations of either paragraph of the complaint herein, is, that the allegations objected to in argument by appellant's counsel are somewhat indefinite and uncertain in their scope and meaning. But it is well settled by our decisions, that objections to any pleading, upon the ground of indefiniteness or uncertainty in any of its allegations, can not be reached nor made available here for any purpose by a demurrer thereto for the want of sufficient facts, but only by a motion for an order requiring the party to make his pleading, or some allegation therein, more definite and certain in the particular objected to, or complained of, by the objecting party. Cincinnati, etc., R. R. Co. v. Chester, 57 Ind. 297; Jameson v. Board, etc, 64 Ind. 524; Nowlin v. Whipple, 79 Ind. 481; City of Evansville v. Worthington, 97 Ind. 282; Cleveland, etc., R. W. Co. v. Wynant, 100 Ind. 160; Cincinnati, etc., R. W. Co. v. Gaines, 104 Ind. 526 (54 Am. R. 334, 4 N.E. 34); Louisville, etc., R. W. Co. v. Jones, 108 Ind. 551, 9 N.E. 476.
Appellant's counsel next complain in argument of the alleged error of the trial court, in overruling the motion for a venire de novo. It is shown by the record, that, on the 22d day of November, 1882, the jury trying the cause returned into court their general verdict herein, as follows: "We, the jury, find for the plaintiff, and assess his damages at two hundred and forty dollars." With their general verdict, the jury also returned into court their special findings upon particular questions of fact, submitted to them by the court.
The general verdict of the jury, and their answers to the questions submitted to them, were each and all signed by their foreman, when the same were returned into court as aforesaid; and the jury were then and there discharged. Nine days afterwards, to wit, on December 1st, 1882, the appellant moved the court in writing for a venire de novo. This motion did not call in question the legality or sufficiency, either in form or substance, of the general verdict of the jury; but it was predicated solely upon their special findings as to the particular questions of fact, submitted to them by the court, by the interrogatories numbered 1, 2, 3 and 6. In the motion for a venire de novo, it was stated that the answer of the jury, as to each of these interrogatories, was "irregular, indefinite, improper and uncertain."
"A venire de novo is granted when the verdict, whether general or special, is imperfect by reason of some uncertainty or ambiguity, or by finding less than the whole matter put in issue, or by not assessing damages." 2 Tidd Pr. 922. Bosseker v. Cramer, 18 Ind. 44; Ridenour v. Miller, 83 Ind. 208; Carver v. Carver, 83 Ind. 368; Bunnell v. Bunnell, 93 Ind. 595.
It has been held, also, in some of our cases, that where an interrogatory is direct and pertinent, and the jury return an uncertain answer, and the court refuses, when requested so to do, to require the jury, before they are discharged from the further consideration of the cause, to return a direct and certain answer to such interrogatory, it will be error in such a case to overrule a motion for a venire de novo. Peters v. Lane, 55 Ind. 391; Carpenter v. Galloway, 73 Ind. 418.
In the more recent case of Bedford, etc., R. R. Co. v. Rainbolt, 99 Ind. 551, upon the point we are now considering, the court said:
In Vater v. Lewis, 36 Ind. 288 (10 Am. R. 29) a case similar in some of its features to the case under consideration, the court said: ...
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Pittsburgh v. Hixon
... ... Cincinnati, etc., R. Co. v. Chester, 57 Ind. 297;Jameson v. Board, etc., 64 Ind ... a locomotive engine, is prima facie evidence of negligence in the company, and their servants having the management of the engine, rendering it ... ...