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

• Citation: 36 N.E. 414,141 Ind. 661
• Decision Date: 13 February 1894
• Docket Number: 16,578
• Parties: The New York, Chicago and St. Louis Railroad Company v. Baltz
• Court: Supreme Court of Indiana

36 N.E. 414

141 Ind. 661

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

No. 16,578

Supreme Court of Indiana

February 13, 1894

Reported at: 141 Ind. 661 at 666.

From the Kosciusko Circuit Court.

Judgment is reversed, with instructions to grant a new trial.

W. D Frazer, S. L. Morris, R. C. Bell, J. M. Barrett and J Morris, for appellant.

L. W. Royse and H. W. Biggs, for appellee.

OPINION

Hackney, J.

This was an action by the appellee, against the appellant, to recover for the loss of a saw mill and certain timber and lumber, and for injuries to the machinery of said mill, alleged to have been sustained by fire communicated to said mill by the careless and negligent emission of sparks from appellant's locomotive, through insufficient spark arresters.

The complaint was not drawn with care in its allegations as to the insufficiency of the spark arrester, nor in the negative allegation of freedom from contributory negligence; but we pass the questions suggested and proceed to consider what we regard as a vital question.

The following answers to interrogatories, with others, were returned by the jury with their general verdict:

"1. Was not the engine of defendant, which is alleged to have fired plaintiffs' property, described in the complaint, known as number 163? Ans. Yes."

"3. Was not such engine provided with a spark arrester known as the extension front? Ans. Yes."

"10. Was not the spark arrester on the engine of defendant, which is claimed to have started the fire, of the most approved style and the best known or equal to the best for the prevention of the escape of fire? Ans. Yes."

"12. Was not the spark arrester in the engine claimed to have fired plaintiff's property in sufficient and proper repair? Ans. No."

"13. If you say 'no' to interrogatory number 12 state specifically wherein the spark arrester was out of repair? Ans. First, because it emitted too many sparks. Second, because the sparks emitted were too large, there being a break in the netting."

"14. Was not the engine claimed to have fired plaintiff's property, while passing plaintiff's property and going through Sidney, properly operated by a skilled engineer? Ans. Yes."

We have carefully read the evidence and find that the answer of the jury to interrogatory numbered 13 is not only not sustained by any evidence, but it is opposed to the uncontroverted evidence of several witnesses who testified to the unbroken condition of the spark arrester. This condition was shown, not only from actual examinations of the spark arrester, but from observations of experts, that a break in the netting of a spark arrester causes the sparks to concentrate at the point of such break and to pass out only at such break. No such action of the sparks emitted from engine numbered 163 was shown by any witness nor by any circumstance while the undisputed evidence of the engineer of that engine was that the sparks were not so concentrated. The evidence, without conflict, supports the answers of the jury to interrogatories numbered 1, 3, 10 and 14.

In this condition of the record we have a case where the locomotive claimed to have communicated the fire was equipped with the most approved and best known spark arrester, in good repair and properly operated by a skilled engineer. If the fire which destroyed the appellee's mill was communicated by sparks emitted from that engine, does it follow that the appellant is liable for the loss? Most certainly not in the absence of negligence on the part of the railway company. The existence of negligence can not be inferred from the mere fact that a fire follows soon after the passage of a train. Indianapolis, etc., R. W. Co. v. Paramore, 31 Ind. 143; Pittsburgh, etc., R. W. Co. v....