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

• Citation: 96 Ind. 40
• Decision Date: 28 May 1884
• Docket Number: 10,849
• Parties: The Wabash, St. Louis and Pacific Railway Company v. Johnson
• Court: Supreme Court of Indiana

96 Ind. 40

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

No. 10,849

Supreme Court of Indiana

May 28, 1884

From the Fountain Circuit Court.

Judgment reversed.

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

C. V McAdams, for appellee.

OPINION

Elliott C. J.

It is settled by our decisions that a complaint for the recovery of damages resulting from the loss of property caused by negligence in suffering fire to escape from railroad locomotives, and to be communicated to adjoining property, must show, either by direct averment or by the facts stated, that the negligence of the plaintiff did not contribute to the injury. It is not enough to show that the defendant was negligent; it must also be made to appear that the plaintiff was without fault. Louisville, etc., R. W. Co. v. Lockridge, 93 Ind. 191; Pennsylvania Co. v. Gallentine, 77 Ind. 322; Wilson v. Trafalger, etc., G. R. Co., 83 Ind. 326.

In the complaint before us the allegation is that the fire was suffered to escape through the negligence of the defendant and without the fault of the plaintiff, but it is not averred that the loss resulted without any negligence of the plaintiff. The allegation of the pleading is confined to the act of suffering the escape of the fire, and by no rule of construction can it be extended to embrace the loss or injury. It may be true, as the complaint charges, that the fire did escape through appellant's negligence, and without any contributory negligence on the part of the appellee, and yet there be no right of action. The express averment falls far short of showing that the appellee was free from contributory negligence. It is one thing to aver that the fire escaped without the negligence of the plaintiff, and quite another to show that he did not contribute to the injury, for his contribution may have been in some matter occurring before or after the fire was suffered to escape. It is not sufficient to show freedom from negligence on one point out of several; the care incumbent upon the plaintiff must extend to all points material to his cause of action.

We can find nothing in the facts stated which shows that there was not contributory negligence on the part of the appellee. With the exception of the allegation that the fire escaped without any negligence on the part of the plaintiff, all the allegations of the pleading are directed to the negligence of the appellant; none of them touches upon the conduct of the appellee. It can not be inferred from the fact that the one was guilty of negligence that the other was not.

It may be true that the appellee was free from fault in suffering the fire to escape, and yet be true that his negligence contributed to the injury. It may be that he negligently exposed his property, or it may be that he could have extinguished the fire by a moment's exertion. It is incumbent upon the plaintiff, in all actions of this character, to show, in accordance with the rules of pleading, that he was free from fault contributing to the injury; it is not sufficient to show that in one particular he was without fault.

It is a familiar rule of pleading that facts, and not evidence must be pleaded. It is also a well known rule that facts must be directly pleaded, and not stated by way of recital. Jackson School Tp. v. Farlow, 75 Ind. 118. There is an essential and important difference between the statement of a fact and the rehearsal of evidence. Suppose, for illustration, that the plaintiff should bring an action for the burning of his barn, and should allege in his complaint that the defendant was seen near the barn immediately before the fire; that he had a lighted torch; that he was the plaintiff's enemy, and that the barn was destroyed by fire. No one could doubt that this evidence would supply ground for inferring, as an inference of fact, that the defendant did burn the barn, and yet no lawyer would contend that the statement of this evidence would constitute a valid cause of action. Many illustrations might be given showing the difference between pleading facts and evidence. Unless parties were required to affirm facts directly, the main purpose of pleading would be frustrated, for, as every one knows, the object of pleading is to evolve an issue, and that an issue is evolved by an affirmance of issuable facts on one side and their denial on the other. Matters of evidence are not admitted by a failure to deny them, but all material averments, not denied, are admitted, and, therefore, evidentiary matters are never material. It was the rule of the common law, and is the rule of the code, that mere matters of evidence are not admitted, although all material matters are admitted by a failure to controvert...