The Louisville, New Albany & Chicago Railway Co. v. Hart

• Decision Date: 05 June 1889
• Docket Number: 12,927
• Citation: 21 N.E. 753,119 Ind. 273
• Parties: The Louisville, New Albany and Chicago Railway Company v. Hart et al
• Court: Indiana Supreme Court

21 N.E. 753

119 Ind. 273

The Louisville, New Albany and Chicago Railway Company v. Hart et al

No. 12,927

Supreme Court of Indiana

June 5, 1889

From the Porter Circuit Court.

Judgment affirmed with costs.

G. W Easley, G. R. Eldridge, G. W. Friedley and W. Johnston, for appellant.

H. A Gillett and J. W. Youche, for appellees.

OPINION

Berkshire, J.

This is an action brought by the appellees against the appellant whereby they seek to recover damages for the loss of a certain lot of hay which they allege was burned and destroyed because of the appellant's negligence.

The complaint is in one paragraph. The appellant first filed a demurrer thereto, alleging want of facts sufficient to constitute a cause of action, which was overruled by the court; to which ruling it excepted, and then filed an answer in general denial. The issue joined was submitted to a jury, who returned a special verdict; after the return of the verdict the appellant moved for a venire de novo, which was overruled and an exception reserved; it then moved to strike out parts of the verdict, which motion was overruled and an exception taken; it then moved to reject the verdict, which motion was overruled and an exception saved; it then moved for a new trial, which motion was overruled and an exception reserved; after which the court rendered judgment for the appellees.

There are several errors assigned: (1) Error of the court in overruling the demurrer to the complaint. (2) Error committed by the court in refusing instructions asked by the appellant. (3) The court erred in instructions given on its own motion. (4) The court erred in overruling the motion for a venire de novo. (5) Error committed by the court in overruling the motion to strike out parts of the special verdict. (6) Error of the court in overruling the motion for a new trial. (7) That the court erred in rendering judgment for the appellees on the special verdict of the jury.

The giving or refusing to give instructions can not be assigned as error in this court, but must be assigned as reasons for a new trial, and brought before this court for review under the assignment of error because of the overruling of the motion for a new trial. The overruling of a motion to strike out parts of the verdict of the jury can not be assigned as error in this court, but must be assigned as a reason for a new trial, and is presented to this court for review under the assignment of error because of the overruling the motion for a new trial. We must, therefore, disregard the second, third and fifth errors assigned, but this can make no difference as to our conclusion in the case, for the questions to which these assignments of error relate are properly presented in the motion for a new trial.

The negligence which is charged in the complaint is, that on the 17th day of November, 1883, there was a large accumulation of dry grass, weeds and other combustible matter on the defendant's right of way to the east of the road-bed, and adjacent to and adjoining the tract of land upon which the appellees' hay was situated; that the appellant had, for a long time theretofore, been negligently and carelessly suffering such dry grass, weeds and other combustible matter to accumulate, and was, at the time, negligently suffering and permitting such accumulation to remain, and while the same was so remaining, and on the day stated above, the appellant carelessly and negligently ran a locomotive engine adjacent to and within twenty-five feet of such accumulation, which engine was then and there so negligently, carelessly and insufficiently constructed and equipped, and then and there so carelessly and negligently managed and operated by the appellant, that it emitted and threw out large coals of fire, which alighted upon and set fire to said accumulation of combustible matter, and the fire so set and started did, through the negligence and carelessness of the appellant, escape and communicate with and set fire to the grass and stubble on the tract of land on which appellees' said hay was situated, and from thence, through the negligence and carelessness of the appellant, escaped and communicated with and set fire to the grass and stubble on the tract of land on which the appellees' hay was situated, and from thence, through the negligence of the appellant, spread and ran along the ground, communicated with and set fire to the hay of the appellees, which was then and there and thereby wholly consumed and destroyed. Then follows a general averment that the appellees were not guilty of negligence contributing to the injury.

We do not care to spend any time upon the complaint; it is an exceedingly well prepared pleading, evidently having been prepared with much care and consideration, and states a good and sufficient cause of action. Pittsburgh, etc., R. W. Co. v. Hixon, 79 Ind. 111; Louisville, etc., R. W. Co. v. Krinning, 87 Ind. 351; Louisville, etc., R. W. Co. v. Hanmann, 87 Ind. 422.

The court committed no error in overruling the motion for a venire de novo. The verdict was not defective or uncertain, but is clear and explicit as to the facts found by the jury. If it does not cover the issues in the case, or so far cover them as to entitle the appellees to a judgment, the question is not presented by a motion for a venire de novo, but must be presented as a reason in the motion for a new trial, or by the motion for a judgment upon the verdict. The question is properly presented in both ways. Bartley v. Phillips, 114 Ind. 189, 16 N.E. 508; Johnson v. Culver, 116 Ind. 278, 19 N.E. 129; Indianapolis, etc., R. W. Co. v. Bush, 101 Ind. 582; Vinton v. Baldwin, 95 Ind. 433; City of Lafayette v. Allen, 81 Ind. 166; Trittipo v. Morgan, 99 Ind. 269; Dixon v. Duke, 85 Ind. 434.

The special verdict returned by the jury is as follows:

"We the jury, having been required to find a special verdict in this action, do find the facts in this case to be as follows That, on the 17th day of November, 1883, said defendant was a railroad corporation, duly organized, and was controlling and operating a railroad in Lake county, Indiana, and had charge and control of the right of way over and along which said railroad ran; that said railway company was organized under the laws of said State, and constructed its said railroad in said county in the year 1880, and so constructed the same between the town of Dyer, in said county, to the Chicago and Grand Trunk Railroad, near a station in said county called Maynard, over and across an open level prairie country for a distance of four miles, and so constructed its said railroad by then and there digging parallel ditches, and with the earth taken from said ditches making a permanent road-bed for said railroad between the same, and had controlled and operated its railroad, so constructed, from said time up to and including the said 17th day of November, 1883; that, on said last mentioned day, there was stacked on lands lying adjacent to, and east of, said railroad, between the points aforesaid, 472 tons of hay, in twelve large stacks; that the nearest of said stacks was distant about twenty-five rods, and the farthest about one hundred and sixty rods, from defendant's said railroad; that the land between the said right of way of said railroad and said stacks, and the land where the said stacks were situated, was hay land, and had all been mowed over and the hay made thereon during the summer of 1883; that upon said day there was also situated upon said land, near said stacks, thirty tons of hay in cocks; that said hay in said stacks was then and there of the value of $ 2,832, and said hay in cocks was then and there of the value of $ 165; that on said day there had accumulated in the said ditch aforesaid, on the east side of defendant's said road-bed, and upon said defendant's said railroad right of way, a large quantity of dead, dry and combustible grass, weeds and rubbish, which had been so accumulating during that and former years, and which had been so accumulating ever since the construction of said railroad as aforesaid; that the said defendant had never in any manner removed or cleared off, nor attempted to remove or clear off, said grass, weeds or rubbish, but that defendant, from the time its road was so constructed up to the said 17th day of November, 1883, suffered and permitted said accumulation of dry grass, weeds and rubbish to be and remain upon its said right of way, although there was no hindrance to the removal thereof during any of said time; and while the same was so remaining, and on said 17th day of November, 1883, the defendant ran an engine and train of loaded freight cars over and along its said road between its said points, and adjacent to the said land where the said hay was so situated, and that sparks and coals of fire were then and there emitted from said engine, which dropped into said ditch and then and there ignited the said dry grass, weeds and rubbish, so accumulated as aforesaid, and the fire thus started ran through said grass, weeds and rubbish, up to the back of said ditch, and communicated directly with, and set fire to, the grass stubble beyond the bounds of said ditch, and from thence ran and extended rapidly along the grass stubble in the direction and to the said hay and hay-stacks, and set fire to and burned up and consumed all of said hay and hay-stacks; that the place where the said dry grass, weeds and rubbish was so ignited by said sparks and coals of fire, so emitted from said locomotive, was twenty-three feet east of the center line of the railroad track of said defendant's railroad; that the place where said dry grass, weeds and rubbish so accumulated as aforesaid was near the center of a level, treeless prairie, about five miles in...