The Chicago, St. Louis and Pittsburgh Railroad Company v. Williams

• Decision Date: 19 March 1892
• Docket Number: 15,559
• Citation: 30 N.E. 696,131 Ind. 30
• Parties: The Chicago, St. Louis and Pittsburgh Railroad Company v. Williams
• Court: Indiana Supreme Court

30 N.E. 696

131 Ind. 30

The Chicago, St. Louis and Pittsburgh Railroad Company v. Williams

No. 15,559

Supreme Court of Indiana

March 19, 1892

From the Blackford Circuit Court.

Judgment affirmed, with costs.

N. O Ross and G. E. Ross, for appellant.

G. W Steele and J. A. Kersey, for appellee.

OPINION

McBride, J.

Two errors are assigned: 1st. That the court erred in overruling the appellant's demurrer to the complaint, and, 2d. That the court erred in overruling the appellant's demurrer to the evidence.

The complaint is as follows:

"James R. Williams v. The Chicago, St. Louis and Pittsburgh Railroad Company. The plaintiff complains of the defendant and says he is the owner in fee of the following described land in said Blackford county, Indiana, to wit: The west half of the southeast quarter of section 17, township 28, range 11, and the southwest quarter of the northwest quarter of said section 17, township 23, range 11, containing 120 acres; and that he has so owned the same and all the improvements thereon and appurtenances thereto for more than ten years last passed; and that on the 6th day of November, 1887, there were 640 rods of fence worth $ 500, and twenty acres of meadow worth $ 100, and a barn and building connected therewith worth $ 50, on said land, and one strawstack worth $ 50, also hay worth $ 5, all reasonably worth $ 1,000, exclusive of the value of said land. And at said date defendant was engaged in running and operating her railroad in the vicinity of said land, and in so doing negligently scattered fire upon her right of way upon her track of her said railroad, which ignited and burned rubbish, grass, weeds and combustible material, which defendant had negligently allowed to accumulate and be on and along her said track on her said right of way, and said fire was by the defendant negligently permitted to spread to and burn and destroy plaintiff's said fences, meadows, barn and out-buildings and property, without any fault or neglect on the part of the plaintiff, and to his damage $ 1,000, which is due and unpaid, and for which he prays judgment and for all proper relief.

Steele & Kersey,

"Attorneys for Plaintiff."

The specific objections urged to the complaint are: 1st. That the averments of ownership of the property destroyed are insufficient, and, 2d. That the allegations as to the spread of the fire, and destruction of the property, are not sufficient; that the complaint does not charge that the fire reached and destroyed the property by a continuous burning.

In our opinion the complaint states a good cause of action. The rule of practice on demurrer to evidence is so well settled by repeated decisions of this court that it is unnecessary to encumber this opinion with any extended statement, quotation or citation.

We will content ourselves by quoting the rule as stated in one of the later cases:

"First. The court is bound to accept as true all the facts which the evidence tends to prove, and, as against the party demurring, to draw from the evidence all such reasonable inferences as a jury might draw. * * *

"Second. If there is a conflict in the evidence, then only such evidence as is favorable to the party against whom the demurrer is directed can be considered, and that which is favorable to the demurring party is deemed to be withdrawn." Palmer v. Chicago, etc., R. R. Co. 112 Ind. 250, 14 N.E. 70.

Numerous cases are cited. The case of Lake Shore, etc., R. W. Co. v. Foster, 104 Ind. 293, 4 N.E. 20, is to the same effect.

There was evidence tending to show that...