Wabash, St. Louis & Pac. Ry. Co. v. Johnson

• Decision Date: 29 May 1884
• Docket Number: 10,847
• Citation: 96 Ind. 44
• Parties: The Wabash, St. Louis and Pacific Railway Company v. Johnson
• Court: Indiana Supreme Court

96 Ind. 44

The Wabash, St. Louis and Pacific Railway Company v. Johnson

No. 10,847

Supreme Court of Indiana

May 29, 1884

From the Fountain Circuit Court.

C. B Stuart, W. V. Stuart, J. McCabe and C. M. McCabe, for appellant.

J. M Rabb, C. V. McAdams, L. Nebeker and H. H. Dochterman, for appellee.

OPINION

Colerick C.

This action was brought by the appellee against the appellant to recover, as damages, the value of certain property alleged to have been destroyed by fire occasioned by the negligence of the appellant. The complaint averred, in substance, that in the month of August, 1881, the appellant negligently permitted grass and rubbish to grow upon its right of way through the lands of the appellee, and negligently permitted the same to dry up and become combustible and while in that condition the same was ignited by sparks and fire emitted by the engines of the appellant passing over its railroad, and that said fire was, through the negligence of the appellant, permitted to be carried to the appellee's premises adjoining said right of way, and destroyed appellee's fencing of the value of $ 150, and his blue-grass pasture, of the value of $ 300, all to appellee's damage $ 550. Wherefore, etc.

A demurrer to the complaint, alleging insufficiency of facts, was overruled. An answer, consisting of two paragraphs, was filed. The first was a general denial. The second averred, in substance, that the appellant, in operating its line of railroad, uses engines propelled by steam, and that at the time alleged in the complaint the appellant was running its said engines upon said line of railroad in the usual and customary manner; and that said engines, at said time, were provided with spark arresters of the most approved patterns in known practical use, and that they were, at said time, in safe and proper condition; that during said month of August, 1881, owing to a long continued and unusual season of hot and dry weather, the grass and vegetation along said right of way became parched and dried up, and that in the ordinary running of appellant's engines in the then condition of the ground and vegetation, it was almost impossible to prevent the escape of sparks, and that if any injury was done to the appellee's property by reason of sparks escaping from said engines, then said injury occurred without any fault or negligence on the part of the appellant.

A demurrer was sustained to the second paragraph of the answer. The issues were tried by a jury, and resulted, over motions for a new trial and in arrest of judgment, in the rendition of a judgment in favor of the appellee. The errors assigned are the rulings of the court upon said demurrers and motions.

The appellant insists that the complaint is insufficient, 1st. Because it contains no allegation that the fire was communicated to the appellee's property by any fault or negligence of the appellant; and, 2d. Because it contains no allegation that the injury of which the appellee complains was caused without his fault or negligence.

It is true, as stated by this court in the case of the Louisville, etc., R. W. Co. v. Ehlert, 87 Ind. 339, that "The authorities recognize a well defined distinction between the negligent setting on fire of inflammable material on the right of way of a railroad company and negligence by...