Wabash R. Co. v. Miller

• Decision Date: 08 December 1897
• Citation: 18 Ind.App. 549,48 N.E. 663
• Parties: WABASH R. CO. v. MILLER.
• Court: Indiana Appellate Court

18 Ind.App. 549

48 N.E. 663

WABASH R. CO.

v.MILLER.¹

Appellate Court of Indiana.

Dec. 8, 1897.

Appeal from superior court, Allen county; C. M. Dawson, Judge.

Action by Sebastian Miller against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Zollars & Worden and Stuart Bros. & Hammond, for appellant. W. G. Colerick and W. E. Colerick, for appellee.

BLACK, J.

The appellant was sued by the appellee for the recovery of damages for injuries to his property from fires permitted, through appellant's negligence, and without the appellee's fault, to escape from its right of way. The complaint contained three paragraphs, each relating to a separate fire. An answer of general denial having been filed, the cause was tried by jury, and a special verdict, consisting of interrogatories, with the jury's answers thereto, was returned. Damages were assessed by the jury upon each paragraph of the complaint; the total being $1,701.38. The only findings concerning the question as to the appellee's freedom from contributory negligence in connection with the matter set forth in the first paragraph of the complaint and in those parts of the special verdict relating to such matter were embraced in the following interrogatories and answers: “(82) Did not the plaintiff and the members of his family make all reasonable efforts to subdue and extinguish said fire? Answer. Yes. (83) Did not the injuries of which the plaintiff complains in his complaint in this action, and the damages which he sustained by reason of said fire, occur without any fault or negligence on his part? Answer. Yes.”

In such an action, as in other actions for damages resulting from negligence, the burden is upon the plaintiff to plead and prove his want of contributory negligence; and, when a special verdict is returned, he will not be entitled to judgment in his favor thereon unless it be sufficiently shown by the verdict that he was free from negligence proximately contributing to the damage suffered by him. Railroad Co. v. Lockridge, 93 Ind. 191; Railroad Co. v. Johnson, 96 Ind. 40, 62; Railroad Co. v. Hadley, 12 Ind. App. 516, 40 N. E. 760;Tien v. Railway Co., 15 Ind. App. 304, 44 N. E. 45. The inquiry as to whether or not the owner of property destroyed by such a fire was or was not guilty of contributory negligence may relate, in a given case, to his conduct, his acts or omissions, prior to the fire, or to his conduct after the fire commenced or was set out. Negligence is an inadvertent act or omission in contravention of a duty. The question as to the property owner's contributory negligence or want of due care before the fire must have reference to his right to use his own property with due regard to the right of the railroad company also to so use its own as not to injure another. It is his duty to protect himself by the exercise of such care as, having reference to the circumstances, may properly be said to be ordinary care. He may proceed before the fire upon the presumption that the railroad company will not injure him through its negligence. He may rightfully use his property in the ordinary and customary way of using such property, without resort to extraordinary safe guards or precautionary methods against injury through negligence of the railroad company. He is not bound to remove dry grass or other combustible materials which may be in danger of ignition only through negligence of the railroad company, for he is not bound to anticipate such negligence. By ordinary use of his property he does not assume risks of injury through the company's negligence, but he assumes the risk of accidental loss through fires not occasioned through negligence or willfulness on the part of the company; for the company also has the right, as to the property of others, to operate and use its railroad with ordinary care. Railroad Co. v. Hendrickson, 80 Pa. St. 182; Snyder v. Railroad Co., 11 W. Va. 14; Kellogg v. Railroad Co., 26 Wis. 223; Railroad Co. v. Salmon, 39 N. J. Law, 299; Jacksonville, T. & K. W. Ry. Co. v. Peninsular Land, Transp. & Manuf'g Co., 27 Fla. 1, 9 South. 661; Railroad Co. v. Jones, 86 Ind. 496; Railroad Co. v. Hixon, 79 Ind. 111; Railroad Co. v. Krinning, 87 Ind. 351; Railroad Co. v. Burger, 124 Ind. 275, 24 N. E. 981.

In the case before us it is not claimed on behalf of the appellant either that the special verdict did not, as to the first paragraph of the complaint, show negligence on the part of the appellant, or that it failed to show such use of his property by the appellee as to sufficiently establish his freedom from negligence contributing before the fire to his loss, in the instance to which the first paragraph of complaint relates. But upon the question whether or not the appellee's freedom from contributory negligence after the fire is sufficiently shown in the verdict, the briefs contain a very vigorous and quite animated discussion. When, in such a case, the property owner had notice of the fire endangering his property to the loss for which sues, if he could have prevented the loss by reasonable effort, and did not make such effort, or unless any attempt he could make and did not make to save his property after he discovered its danger would be useless or extraordinarily hazardous or difficult, he cannot recover for such loss. If he fail to do his duty, then to the extent to which his loss is attributable to such failure he must bear it without compensation from the company. Where, as in this state, the burden rests upon the plaintiff to show his want of contributory negligence, it becomes necessary for him to show whether or not he or his servant in charge of the property had knowledge of the existence of the fire during its progress; and, if it is not made to appear that such knowledge did not exist, then it devolves upon the plaintiff to show what efforts were made to save him from loss, and it is incumbent upon him to prove the use of efforts reasonable under the circumstances. Bevier v. Canal Co., 13 Hun, 254; Hogle v. Railroad Co., 28 Hun, 363; Eaton v. Navigation Co., 19 Or. 391, 24 Pac. 415;Tilley v. Railway Co., 49 Ark. 535, 6 S. W. 8; Railroad Co. v. Lockridge, 93 Ind. 191; Railroad Co. v. Johnson, 96 Ind. 40; Railroad Co. v. Hadley, 12 Ind. App. 516, 40 N. E. 760;Tien v. Railroad Co., 15 Ind. App. 304, 44 N. E. 45; Railroad Co. v. Porter (Ind. App.) 44 N. E. 1112; Railroad Co. v. Bailey (Ind. App.) 46 N. E. 688.

The question here presented concerning the proper effect of the portion of the special verdict relating to the plaintiff's care and diligence is to be determined by the application of the principles relating to special verdicts in actions for negligence in general, having in view the peculiar nature of the particular cause of action. In a special verdict, facts only should be found, and to entitle the party having the burden of the issue to a judgment in his favor all the facts essential to such a recovery must be found, while mere conclusions of law and mere matter of evidence stated in the verdict will not serve the same purpose as the finding of facts. Railroad Co. v. Barnhart, 115 Ind. 399, 16 N. E. 121; Railroad Co. v. Berkey, 136 Ind. 181, 35 N. E. 3; Railroad Co. v. Miller, 141 Ind. 533, 37 N. E. 343; Railroad Co. v. Adams, 105 Ind. 151, 5 N. E. 187;Conner v. Railway Co., 105 Ind. 62, 4 N. E. 441. When negligence is in issue, and the facts are such that different conclusions may be drawn reasonably as to whether the plaintiff did or did not act as a reasonably prudent man would ordinarily act under like circumstances, and the case is therefore one in which it is within the province of the jury to draw and state the inference of fact that the plaintiff did or did not act as a person of ordinary prudence would act under like circumstances, yet, unless the primary facts from which such inference is drawn by the jury be also stated in the verdict, so that the court may have the opportunity to determine whether different conclusions might reasonably have been drawn from them, such conclusion or inference stated by the jury will not be accepted by the court as decisive of the matter so stated. It will be treated, not as an inferential fact legitimately found by the jury, but as a statement of a conclusion of law would be treated,-by ignoring it. Railroad Co. v. Grames, 136 Ind. 39, 34 N. E. 714;Walkup v. May, 9 Ind. App. 409, 36 N. E. 917;Gaston v. Bailey, 14 Ind. App. 581, 43 N. E. 254;Terry v. Railway Co. (Ind. App.) 43 N. E. 273;Board v. Bonebrake (Ind. Sup.) 45 N. E. 470;Seybold v. Railroad Co. (Ind. App.) 46 N. E. 1054. These legal questions are settled. There is no controversy concerning them, or denial that they are controlling rules of law. If, in any particular cases, the decisions have not been in harmony with them, such decisions are so far not controlling.

It is not claimed, as we understand counsel, that the interrogatory and answer numbered 83, standing alone, would be sufficient upon the matter to which it relates, to uphold a judgment for the plaintiff; but it is claimed that it is an inference legitimately drawn by the jury from facts stated in the interrogatory and answer numbered 82, whereby it is found that the plaintiff, and the members of his family,...