The Ohio and Mississippi Railway Company v. Trapp
| Decision Date | 16 March 1892 |
| Docket Number | 120 |
| Citation | 30 N.E. 812,4 Ind.App. 69 |
| Parties | THE OHIO AND MISSISSIPPI RAILWAY COMPANY v. TRAPP |
| Court | Indiana Appellate Court |
From the Jennings Circuit Court.
Judgment affirmed.
G. F Lawrence, for appellant.
A. G Smith, for appellee.
Margaret Trapp sued the railroad company before a justice of the peace to recover damages for the destruction of fence rails and growing hay and grass by fire. The complaint is in two paragraphs, the first charging in substance that the defendant owned and operated a line of railroad through Jennings county, and on the -- day of July, 1887, while running a locomotive engine on said road, carelessly discharged sparks and coals of fire therefrom, upon the right of way, igniting a large quantity of dry grass, weeds and other combustible material which the defendant had negligently permitted to accumulate and be upon the right of way, and the defendant carelessly permitted the fire so set out to escape and communicate to plaintiff's premises adjoining, where it spread and burned over her farmland, consuming and destroying five acres of growing hay of the value of fifty dollars.
The second paragraph is the same in substance as the first, but it charges the destruction of 1,392 fence rails and fifteen acres of growing pasture.
The cause was tried upon the issues created by the statute before the justice, and an appeal was taken from the judgment of the justice to the Jennings Circuit Court. There the defendant filed a motion in writing to require the plaintiff to make each paragraph of complaint more specific, so that it would show in what the alleged negligence in discharging sparks and coals from the engine consisted--whether in its improper equipment or careless operation. The motion was overruled, and the cause was tried by a jury and resulted in a verdict for plaintiff. Judgment was rendered upon the verdict and the defendant appeals and assigns a number of errors for a reversal of the judgment.
It is first insisted that the court erred in overruling the motion to make the complaint more specific.
Ordinarily, appeals from justices of the peace are tried upon the issues made before the justice, but in this case no objection was made to the filing of the motion, and the question seems to have been treated by the parties as if the cause originated in the circuit court, and this court will consider it in the same manner. In actions of the class to which this belongs the gist of the wrong is negligence in suffering the fire to escape from the premises of the defendant. One has the right to set fire upon his own premises, and his prudence or lack of prudence is of no legal concern, unless he permits the fire to escape and commit injury. Wabash, etc., R. W. Co. v. Johnson, 96 Ind. 40; Indiana, etc., R. W. Co. v. McBroom, 91 Ind. 111; Louisville, etc., R. W. Co. v. Ehlert, 87 Ind. 339; Pittsburgh, etc., R. W. Co. v. Hixon, 79 Ind. 111; Pittsburgh, etc., R. W. Co. v. Culver, 60 Ind. 469.
If, however, in the case before us, the sparks and coals emitted from the engine had communicated directly to the appellee's property and ignited it, the question raised by counsel for appellant would have been pertinent. But when one is in the prosecution of a business which endangers surrounding property by fire, and while thus engaged sets out fire in such environments that its spread is a natural sequence, and it does spread and commit damages, it is an actionable wrong, and the manner in which it is set out is immaterial, provided the wrong-doer is legally responsible for the environments. It is impossible to operate a railroad without danger from fire, and prudence requires railroad companies to keep the property under their control reasonably clear and free from combustible material which might serve as a medium to communicate fire to adjoining property. In an action against a railroad company for damages caused by fire carried through a bed of combustible rubbish on the right of way to adjoining property, the gravamen is the negligent escape of the fire. This may be established 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. Louisville, etc., R. W. Co. v. Nitsche, 126 Ind. 229, 26 N.E. 51; Brummit v. Furness, 1 Ind.App. 401, 27 N.E. 656. There was no error in overruling the motion.
The next question discussed by counsel for appellant relates to the action of the court in ordering the sheriff to empanel a jury of bystanders to try the cause. It appears by the record that the regular panel had been in attendance during the early part of the term, until all of the causes in which a jury had not been waived were disposed of, and were then discharged for the term. Counsel for both sides had announced their willingness to try the cause by the court without the assistance of a jury, and counsel for appellant were present when the regular panel were discharged finally, and made no objection thereto. When the cause came on for trial appellant demanded a jury, and insisted upon the return of the regular panel.
Section 1396, R. S. 1881, provides that "in all cases when the proper officers have failed or refused to draw and empanel a traverse jury, or where, for any other cause whatever, no traverse jury shall be present at any term of the court, it shall be lawful and is hereby made the duty of the circuit court, if the business thereof require it, to order the sheriff to summon a jury from the bystanders," etc. Merely because the regular jury had been in attendance during the term did not take from the court the power to call a special jury after the discharge of the regular panel.
If the regular jury for any cause is not present at any time during a term of court, and the business of such court requires a special jury, the court has the power to order one. Besides, appellant having announced its waiver of a jury trial, and consented to the discharge of the regular panel, and having afterwards demanded a jury, will not be permitted to successfully question the court's action in calling a jury from among the by-standers to try the cause.
Complaint is next made of the action of the trial court in striking out interrogatories numbered one, two, three and sixteen of a series proposed by appellant for the jury to answer. The first three inquired the name of any witness who testified that the fire complained of was set out by a locomotive engine operated by appellant. If the questions had been submitted, and the jury had answered that no witness so testified, the most favorable responsive answer for appellant, the result would not have been affected. The origin of fires is often proved by circumstances. It is not necessary to prove it by direct or positive evidence. No witness may have testified that the...
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Ohio & M. Ry. Co. v. Trapp
... ... for the destruction of growing hay and fence rails by Margaret Trapp against the Ohio & Mississippi Railway Company. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.George F ... ...