Toledo, St. Louis & Western Railroad Company v. Sullivan
| Decision Date | 12 March 1908 |
| Docket Number | 6,126 |
| Court | Indiana Appellate Court |
| Parties | TOLEDO, ST. LOUIS & WESTERN RAILROAD COMPANY v. SULLIVAN ET AL |
From Grant Superior Court; B. F. Harness, Judge.
Action by James H. Sullivan and another against the Toledo, St Louis & Western Railroad Company. From a judgment for plaintiffs, defendant appeals.
Affirmed.
Guenther & Clark, Clarence Brown and Charles A. Schmettau, for appellant.
T. B Dicken, W. D. Lett and W. E. Haisley, for appellees.
The complaint alleges that on November 9, 1903, appellees, as partners, were the owners of a sawmill, buildings, lumber etc., situate in the town of Van Buren, this State, and contiguous to the right of way used by appellant in operating its trains of cars and locomotive engines through said town, and Grant county; that on said day appellant, in the use of one of its locomotives, and by reason of the insufficient, defective, unsafe and dangerous condition of the spark-arrester with which said locomotive was equipped, negligently permitted large coals of fire to be emitted and thrown therefrom upon said property, whereby said property was set on fire and destroyed. To recover damages for such alleged negligence appellees instituted this action against appellant. The amended first paragraph of complaint, answered by a general denial, formed the issues submitted to a jury, resulting in a verdict for appellees. Over appellant's motion for a new trial judgment on the verdict was rendered for $ 1,854.16.
The overruling of appellant's demurrer to the first amended paragraph of the complaint for want of facts and its motion for a new trial are the only errors relied on for a reversal of the judgment.
The objection urged against the complaint is that it does not allege that appellees sustained any damage. On this point, from the allegations of fact, it appears that appellees, as partners, were the owners of certain property; that it was of the value of $ 4,000; that it was totally destroyed by fire by reason of the negligence of the appellant, and for the value of the property thus destroyed judgment was demanded. It is true, as appellant insists, that the complaint to be good as against a demurrer for want of facts must show that complainants sustained damages, resulting proximately from the negligent acts or omissions charged against the defendant. While the complaint does not, with that clearness demanded by good pleading, allege that appellees sustained damages in the sum of $ 4,000, yet from the facts appearing no other conclusion could reasonably be drawn, and this being true, the allegations of fact in the complaint fully apprised appellant of the cause of action, and the complaint was sufficient as against the demurrer. § 343 Burns 1908, cl. 2, § 338 R. S. 1881; Chicago, etc., R. Co. v. McDaniel (1893), 134 Ind. 166, 171, 32 N.E. 728; Morris v. Ellis (1897), 16 Ind.App. 679, 46 N.E. 41.
The first reason argued in support of the motion for a new trial is that the verdict is not sustained by sufficient evidence, in that the evidence does not show that the fire originated from one of appellant's engines, nor that it was caused by any negligence of appellant. The record in this case discloses evidence tending to prove that appellees' property on the day it was destroyed by fire was located about one hundred feet north of appellant's main railroad track. About 3 o'clock in the afternoon of said day one of appellant's locomotives, pulling a heavy freight-train and running very slow--about four miles an hour--passed appellees' mill. The train was headed west, and the engine, while passing said mill, threw sparks and coals of fire, some larger than grains of corn, around, upon and beyond the mill building. Some of the witnesses testified that "the engine was working hard" and "throwing cinders pretty thick," which fell around a person 110 feet north of appellant's tracks. A witness, at the time working about ninety-four feet from the track, and near the mill, testified that when the engine passed he noticed the cinders "coming heavy." Another testified that he was just east of the mill, and that cinders as large as grains of corn, "some were black and some were red," fell around him and some struck and burned his hands. At that time there was no fire about the mill. The weather was very dry, and a strong wind was blowing from the south or southwest. About twenty or thirty minutes after the train passed the mill was discovered to be on fire. The fire started in the southwest corner at a point about thirty-five or forty feet from the mill furnace or boiler room. The mill building was sided with cotton wood boards, and had a new shingle roof. There was an opening in the building at the place where the fire started. A witness who had been a locomotive engineer for twenty-four years, after describing to the jury spark-arresting appliances in use, testified that if the spark-arrester had been in good condition--no holes in it--sparks of fire and cinders would not have been thrown a distance of 100 feet. To the question: "If a locomotive engine was throwing an excessive amount of cinders, some of them as large as grains of corn, to a distance of 110 feet, what, in your opinion, would be the cause of that engine's throwing them?" he answered:
In this class of cases seldom do we find evidence so clearly establishing the fact that the property was destroyed by fire communicated by the locomotive; but with this fact against appellant, under the ruling of the court in New York etc., R. Co. v. Baltz (1895), 141 Ind. 661, 36 N.E. 414, appellees must further show that the fire was started by reason of appellant's fault in negligently using a defective and insufficient spark-arrester. Toledo, etc., R. Co. v. Fenstermaker (1904), 163 Ind. 534, 538, 72 N.E. 561. Appellant in its behalf offered no evidence on this subject. The evidence supporting the allegation of negligence was circumstantial and must be held sufficient to support the verdict, if from all the circumstances proved the jury might...
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