Toledo, St. Louis & Western Railroad Company v. Parks
| Decision Date | 07 December 1904 |
| Docket Number | 20,414 |
| Citation | 72 N.E. 636,163 Ind. 592 |
| Court | Indiana Supreme Court |
| Parties | Toledo, St. Louis & Western Railroad Company v. Parks |
From Grant Superior Court; B. F. Harness, Judge.
Action by Henry N. Parks against the Toledo, St. Louis & Western Railroad Company for damages for negligently setting fire to his woods. From a judgment on a verdict for $ 250, the defendant appeals. Transferred from the Appellate Court under § 1337u Burns 1901.
Reversed.
C. G Guenther, Braden Clark, Clarence Brown and C. A. Schmettau for appellant.
J. A Kersey, for appellee.
Appellee recovered judgment for damages caused by fire, alleged to have been permitted to escape from a locomotive, through the negligence of appellant. The negligence charged in the complaint was the use on the locomotive of an insufficient spark-arrester, and an insufficient furnace, fire-box, and ash-pan, by reason whereof fire was thrown out and away from the engine onto the plaintiff's timber land adjoining the defendant's right of way, ignited the grass and destroyed his growing trees. The answer was a general denial.
The overruling of the motion for a new trial is the decision challenged. The grounds of this motion are the insufficiency of the evidence, the admission of improper evidence, and the giving and the refusing of certain instructions. Is the evidence sufficient to sustain the verdict?
Appellee makes the point that the evidence is not in the record because the bill of exceptions purporting to contain it is not shown to have been filed after it was signed by the judge. An inspection of the record reveals that the signing and filing of the bill occurred upon the same day, and under the repeated rulings of this court in such cases we will presume, in favor of the proper action of the judge, that he subscribed his signature to the bill before it was filed. Martin v. State (1897), 148 Ind. 519, 47 N.E. 930; Minnick v. State, ex rel. (1900), 154 Ind. 379, 382, 56 N.E. 851; Bradley, Holton & Co. v. Whicker (1899), 23 Ind.App. 380, 55 N.E. 490.
The plaintiff introduced evidence to the effect that he owns a farm of 100 acres, a portion of which, known as the "woods," was situate north of and adjoining appellant's right of way. The railroad at this point is almost level, and runs east and west. On April 22, 1903 between 11:30 and 12 o'clock a. m., in a dry time, and within a few minutes after a freight-train on appellant's road went west, a fire broke out in appellee's woods at a point about ten feet from the right of way. At the time there was a brisk wind blowing from the southwest toward the northeast. The fire spread rapidly, and, before it could be controlled, destroyed growing trees to the damage of the plaintiff of $ 250. Before the passage of the freight-train there was no fire in the plaintiff's woods, and aside from the locomotive that hauled the train there was no known, actual, or probable source of fire. On the other hand, the defendant produced evidence that engine No. 64 pulled the freight-train that passed the point where the fire occurred about 11:45 a. m., and no other engine or train passed the place within one hour of the time of the fire; that engine No. 64 was equipped with a spark-arresting device that was in common use on railroads, and was generally regarded as one of the best and most approved devices for preventing the escape of fire. On the evening after the fire, upon the return of engine No. 64 to the roundhouse, it was inspected by a competent inspector, who examined the spark-arrester, fire-box, and ash-pan, and made, as the inspection progressed--and as he does in all inspections--a record of the condition of each part, and the spark-arrester, fire-box, and ash-pan were at that time in good condition. The mesh of the netting used in the spark-arrester on engine No. 64 was the same size used in all first-class arresters, and is as small as can be used without impairing the draft and steaming power of the locomotives. Some fire will...
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