The Ohio and Mississippi Railway Company v. Wrape

• Decision Date: 02 March 1892
• Docket Number: 225
• Citation: 30 N.E. 428,4 Ind.App. 100
• Parties: THE OHIO AND MISSISSIPPI RAILWAY COMPANY v. WRAPE
• Court: Indiana Appellate Court

30 N.E. 428

4 Ind.App. 100

THE OHIO AND MISSISSIPPI RAILWAY COMPANY v. WRAPE

No. 225

Court of Appeals of Indiana

March 2, 1892

From the Jennings Circuit Court.

Affirmed.

G. F Lawrence, for appellant.

A. G Smith and W. Fitzgerald, for appellee.

OPINION

CRUMPACKER, J.

This action was commenced by Wrape against the railroad company to recover damages caused by fire which escaped from the right of way to the plaintiff's premises through the alleged carelessness of the defendant.

The first paragraph of complaint alleges that plaintiff was the owner of a tract of land adjoining the defendant's right of way, upon which was growing timber; that the defendant carelessly and negligently allowed dry leaves, grass and other combustible rubbish to accumulate and remain upon its right of way, and in operating locomotive engines upon its railroad, such combustible rubbish was set on fire and the defendant carelessly permitted the fire so set out to escape from the right of way and enter upon plaintiff's said premises, where it spread over his woodland, "then and there injuring, killing and destroying five hundred young oak and poplar trees growing upon said land, of the value of one dollar each;" that the injury occurred without any fault or negligence upon the part of the plaintiff.

The second paragraph, in legal aspect, is the same as the first, but it alleges the injury, etc., of twenty-eight hundred young oak and poplar trees of the value of twenty-five cents each.

The cause was put at issue and tried by a jury. A verdict was returned in favor of plaintiff, upon which judgment was rendered.

The defendant appeals and assigns a number of grounds of error.

The first question for consideration arises upon exceptions to the overruling of appellant's motion to make each paragraph of complaint more specific. This motion seeks to require the complaint to state more particularly the acts or omissions which constituted appellant's negligence in permitting the fire to escape from the right of way, also to state the number of trees that were "injured," the number "killed," and the number "destroyed," and the size and value of each; also the number and particular kinds of oak, the number of poplar, and a specific classification of all other kinds for which damages are claimed.

Reasonable certainty is all that can practically be accomplished in pleading. The complaint charges negligence in permitting the fire set out by appellant to escape from its right of way. This is a negative averment, showing by neccssary implication a failure to take ordinary precautions to prevent its escape, and it is obvious that it would be a difficult task, and one entirely beyond the province of pleading, to negative specifically every possible method by which the escape of the fire might have been prevented. This identical question was decided adversely to the position of the appellant by this court in the case of Chicago, etc., R. R. Co. v. Barnes, 2 Ind.App. 213, 28 N.E. 328, and we see no reason for departing from the rule announced in that case.

Respecting the other phases of the motion, they relate to mere matters of evidence which must have been treated as surplusage in the complaint had it satisfied the requirements of the motion. Pennsylvania Co. v. Zwick, 1 Ind.App. 280, 27 N.E. 508. There was no error in overruling the motion.

With the answer appellant filed a number of interrogatories, and obtained an order of court requiring the appellee to answer them under oath. After such answers were filed, appellant moved for an order requiring them to be made more definite and certain. The interrogatories sought to elicit a specific description of the kinds of trees injured, the number and size of each kind, the length of time appellee had owned the land, and the amount he paid for it originally.

Without discussing each question and answer in detail, it may be safely declared that to the extent to which the interrogatories tended to elicit material facts, they were sufficiently answered, and...