Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Wise

• Decision Date: 27 June 1905
• Docket Number: 5,215
• Citation: 74 N.E. 1107,36 Ind.App. 59
• Court: Indiana Appellate Court
• Parties: PITTSBURGH, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY v. WISE

74 N.E. 1107

36 Ind.App. 59

PITTSBURGH, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY v. WISE

No. 5,215

Court of Appeals of Indiana

June 27, 1905

From Howard Superior Court; B. F. Harness, Judge.

Action by Henry Wise against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment on a verdict for plaintiff for $ 567.50, defendant appeals.

Reversed.

George E. Ross, for appellant.

Strange & Thompson, Kirkpatrick & Morrison and Dan Dilla, for appellee.

OPINION

ROBINSON, J.

Action by appellee for damages to property by fire alleged to have been caused by appellant's negligence.

Appellant first argues that the court erred in overruling its motion to make the second and third paragraphs of complaint more specific.

The second paragraph avers that on July 31 1901, appellant was operating a locomotive and freight-train on its right of way through appellee's farm; that on that day, and for a long time prior thereto, there was a large accumulation of dry grass, weeds and other combustible matter on appellant's right of way through appellee's premises, which appellant had been negligently suffering to accumulate at such places, and was at the time negligently suffering and permitting such accumulations to remain, and while so remaining on the above date, "carelessly and negligently ran an engine or locomotive adjacent to and alongside such accumulation, which engine was then and there so negligently, carelessly and insufficiently constructed and equipped in this, to wit: that the meshes in the spark-arrester in use were too large, and insufficient to prevent the escape of sparks and live coals therefrom, and by reason of said spark-arrester and meshes thereof being old, worn and in a broken and burned condition, and then and there so carelessly managed and operated by the defendant in this, to wit: by supplying too much fuel and putting on too much steam, and opening the draft, and by suddenly increasing the speed of said train, and by running said train too fast; that by reason thereof it emitted and threw out live sparks and coals of fire, which alighted upon and set fire to said accumulation of combustible matter, and the fire so started by and through the negligence and carelessness of defendant did escape and communicate with the field, and set fire to the grass and growing clover," destroying the same.

The third paragraph avers that appellant "negligently failed to have its said locomotive provided with a safe and sufficient spark-arrester and other appliances essential to prevent the dangerous escaping of live sparks and coals therefrom, in this: that the meshes in the spark-arrester in use were too large and insufficient to prevent the escaping of sparks and live coals therefrom;" that on the date named the locomotive was "so negligently and carelessly and insufficiently constructed and equipped, by said meshes being too large, and by reason of the old, worn, broken and burned condition of such spark-arrester, and meshes, which engine was then and there so negligently managed and operated by the defendant, in this, to wit: by supplying too much fuel and putting on too much steam and opening the drafts and by suddenly increasing the speed of said train and by running said train too fast; that, by reason of such condition, construction and operation, it emitted and threw out live sparks and coals of fire of unusually large size, character and quantity, which were carried a great distance to the plaintiff's premises, and falling thereon, upon and among the dry grass and stubble in plaintiff's meadow field, clover field, and stubble field and timothy field," set fire to the same, which fire rapidly spread, consuming certain property described.

The second paragraph is sufficiently certain and definite as to the extent of the accumulation of dry grass, weeds and other combustible matter, and also as to the time during which it had been permitted to be and remain upon the right of way. The pleading states that there was a large accumulation of such matter, and that, for a long time prior to the fire, appellant had negligently suffered it so to remain. It is not negligence per se to permit combustible matter to be on the right of way. But the averment is much broader than this. The averment is that there was a large accumulation, which had been negligently suffered to remain for a long time prior to the fire, during the hot season of the year. It is also averred that this material on the right of way was ignited by sparks and coals of fire from a passing locomotive, and that the fire, by and through appellant's negligence and carelessness, escaped and communicated with appellee's property. "If a railroad company," said the court in Louisville, etc., R. Co. v. Hart (1889), 119 Ind. 273, 4 L. R. A. 549, 21 N.E. 753, "negligently and carelessly permits grass and other combustible matter to accumulate upon its right of way, and fire is emitted from one of its passing locomotives and falls upon the grass or combustible matter that has been allowed to accumulate from want of proper care on its part, and the fire spreads and passes over upon the lands of the adjoining proprietor and burns and consumes his property, he being guilty of no negligence contributing to the injury, the railroad company is liable for the loss sustained." See Pittsburgh, etc., R. Co. v. Hixon (1887), 110 Ind. 225, 11 N.E. 285; Indiana, etc., R. Co. v. Overman (1887), 110 Ind. 538, 10 N.E. 575.

The gravamen of the second paragraph of complaint is the negligent escape of the fire from the right of way. "This may be established," said the court in Ohio, etc., R. Co. v. Trapp (1892), 4 Ind.App. 69, 30 N.E. 812, "by showing that the defendant omitted to adopt prudent means to prevent its escape, or that through his carelessness the surroundings were permitted to be such that the escape of the fire was the ordinary sequence of its setting out." See Louisville, etc., R. Co. v. Nitsche (1890), 126 Ind. 229, 9 L. R. A. 750, 22 Am. St. 582, 26 N.E. 51.

It was appellant's duty to keep its right of way reasonably clear and free from combustible material which might serve as a medium to communicate fire to adjoining property. Under the averment that appellant negligently and carelessly permitted the fire to escape from its right of way, it need not necessarily be shown that appellant omitted to adopt prudent means to prevent its escape after the fire started; but it might be shown under that averment that the accumulation of material on the right of way extended up to appellee's property, so that its communication to appellee's property would be the natural and probable consequence of its burning upon the right of way. Ohio, etc., R. Co. v....