The New York, Chicago and St. Louis Railroad Company v. Grossman

• Decision Date: 10 March 1897
• Docket Number: 2,024
• Citation: 46 N.E. 546,17 Ind.App. 652
• Parties: THE NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY v. GROSSMAN
• Court: Indiana Appellate Court

46 N.E. 546

17 Ind.App. 652

THE NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY v. GROSSMAN

No. 2,024

Court of Appeals of Indiana

March 10, 1897

Rehearing denied May 26, 1897.

From the Marshall Circuit Court.

Affirmed.

M. A O. Packard, Chas. Drummond and Morris, Bell, Barrett &amp Morris, for appellant.

William B. Hess, for appellee.

OPINION

ROBINSON, J.

Appellee recovered a judgment for damages resulting from fire, alleged to have been negligently started by appellant, and negligently permitted by appellant to go upon and destroy appellee's property. The complaint was held good against a demurrer, and the cause was put at issue by the general denial. The jury returned a special verdict, and final judgment was rendered for appellee over appellant's motions for a venire de novo and for judgment in its favor.

Appellant assigns as error the overruling of the demurrer to the complaint and the motions for a venire de novo and for judgment.

Appellant's counsel say, in their brief, they think the complaint sufficient, and do not discuss the ruling on the demurrer.

It is insisted that the special verdict is defective in that the jury failed to find that appellee was free from fault or that appellant was guilty of any negligence. Upon these subjects the special verdict is as follows: "Int. 3. Had the defendant, by its employes, cut grass and weeds growing on its right of way north of its track adjacent and adjoining the said land of plaintiff, leaving it remain there for some days before the fire? Ans. Yes. Int. 4. Did the defendant carelessly and negligently permit and suffer dry grass and rubbish and weeds and other combustibles to accumulate and remain along and upon its rights of way adjacent and adjoining the said land of the plaintiff at the time of said fire? Ans. Yes. Int. 5. If you answer yes to the foregoing interrogatory, then did sparks escape from the defendant's locomotive engine attached to a freight train going east on its said railroad, on or about the time set forth in the plaintiff's complaint, and set fire to said dry grass, weeds, rubbish, and other combustible material? Ans. Yes. Int. 6. If you answer yes to the preceding interrogatory, did said fire, through the medium of such combustible materials, without any fault or negligence of the plaintiff, escape and run off from said defendant's right of way to the plaintiff's said land and burn and damage and destroy his property as described in the complaint? Ans. Yes. * * * * * * * Int. 23. Did said defendant carelessly and negligently permit said fire to escape from its right of way onto the plaintiff's said land at the time mentioned in his complaint? Ans. Yes. Int. 24. Was it exceedingly dry at the time of the fire described in the complaint? Ans. Yes. Int. 25. Was there a light or brisk wind from the southwest at the time of said fire? Ans. Brisk. Int. 26. Is the plaintiff's said land on the north side of the defendant's right of way and adjacent and adjoining the defendant's right of way? Ans. Yes. Int. 27. Did the fire which plaintiff alleges destroyed the property described in the complaint start on the defendant's right of way? Ans. Yes. Int. 28. If you say yes to the preceding interrogatory, state the point on the defendant's right of way where said fire started. Ans. About two hundred feet west of plaintiff's west line. Int. 29. What started the fire on defendant's right of way? Ans. A spark from the defendant's engine. * * * * Int. 32. State specifically, if you say said fire started on the right of way, in what combustible matter said fire started. Ans. Grass and weeds. Int. 33. State specifically how said fire got onto the real estate described in the complaint. Ans. From a fire that originated on the defendant's right of way. * * * Int. 37. What was the value of the plaintiff's labor in suppressing the fire complained of in his complaint? Ans. Five dollars. * * * Int. 40. Had not defendant's right of way, where it is alleged said fire started, been cleaned off and freed from rubbish and combustible matter in the spring of that year? Ans. Yes."

It is argued that interrogatory six and the answer are vague, and that the answer is a conclusion and not a fact.

We do not think the interrogatory is a proper one under the act of 1895. It is not possible to tell whether the jury intended to say that the fire escaped from the railroad right of way onto plaintiff's land and destroyed his property, or whether it was the jury's conclusion that the fire escaped without plaintiff's fault, or whether it was their conclusion that it destroyed plaintiff's property without his fault. If the jury found, in other parts of the verdict, that the fire originated on the railroad right of way and that it escaped to appellee's land and destroyed his property, all of which they did find in answer to other interrogatories, then the only part of the question left...