Louisville, New Albany & Chicago Railway Co. v. Carmon ( 1898 )

Wiley, J.

Appellee was plaintiff below, and prosecuted this action against appellant for damages alleged to have been sustained by fire resulting from the alleged negligence of appellant. The complaint is in two paragraphs, but as no question is presented for our consideration as to the sufficiency of the complaint, it is unnecessary to set it out at length in this opinion. It is sufficient to say that the appellee was the owner of certain real estate situated in Lake county, Indiana, and near- the appellant’s track and right of way.

The negligence complained of in the first paragraph of the complaint is that appellant permitted dry grass, weeds, and other combustible matter to accumulate on its right of way, and that the same was negligently and carelessly set on fire by sparks and coals of fire from a passing locomotive, which fire, it is charged, the appellant suffered to escape from its right of way on to adjoining lands, and thence on to appellee’s land, to his damage, etc.

The negligence complained of in the second paragraph of the complaint is, that in August, 1893, during a great drought, the appellant directed its servants and employes, to cut upon its right of way and near appellee’s land, the weeds, grass, etc., growing thereon, and while the same were very dry, appellant directed its servants to set fire to such grass, weeds, etc., for the purpose of burning them up, and that it, through its servants, negligently permitted such fire to escape from its right of way on to adjoining lands, and thence on to appellee’s land, where Ms property was destroyed, to Ms injury, etc.

The sufficiency of the complaint was challenged by a demurrer, which was overruled, as is shown by the record, but the demurrer is not in the record, the clerk certifying that it is not upon the files in his office; but as appellant in its brief, raises no question as to the sufficiency of the complaint, it is thereby waived and we need not notice it further.

The case was put at issue by a general denial, trial by jury, a special verdict, and judgment thereon in favor of the appellee. The appellant moved for a venire de novo, for judgment in its favor on the special verdict, and for a new trial, each of whicli motions the court overruled, and appellant excepted.

The third specification of the assignment of error calls in question the overruling of appellant’s motion for a venire de -novo. The fourth, fifth and sixth specifications in the assignment of error are as follows: “(4) The court erred in overruling appellant’s motion for judgment in its favor; (5) the court erred in rendering judgment in favor of the appellee; (6) the court erred in overruling appellant’s motion for a new trial.”

The special verdict consists of eighty-seven interrogatories and answers thereto. It is earnestly insisted by appellant that the special verdict is so defective, uncertain, and ambiguous, that no judgment could be rendered upon it, and hence it was error to overrule its motion for a venire de novo.

It is the settled law in this State that a special verdict must find and state all the facts, essential to the party’s recovery, having the burden of proof. Indiana, etc., R. W. Co. v. Barnhart, 115 Ind. 399; Louisville, etc., R. W. Co. v. Berkey, 136 Ind. 181; Louisville, etc., R.W. Co. v. Miller, 141 Ind. 533; Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151; Conner v. Citizens’ Street R. W. Co., 105 Ind. 62; Wabash R. R. Co. v. Miller, 18 Ind. App. 549. Thus, in a case of this character, the verdict must show the negligence charged against the appellant; that the injury sustained by the appellee was without his fault or negligence, and that it must also show', what if anything, appellee did to prevent the injury.

Appellant contends that the verdict does not find that the appellant was negligent as charged, and also fails to find that appellee was without fault on his part. While we do not decide the question, for it is unnecessary, we are inclined to the view that the verdict does find and show that appellant was guilty of actionable negligence. As to the want of negligence on the part of the appellee, we quote in full all the findings relative thereto as follows: “73. Did plaintiff do anything which in any way aided the spread of said fire from said right of way, or which in any way contributed toward the escape of said fire from defendant’s right of way, or which in any way aided or contributed toward the spread of said fire to his said lands, or which in any way aided or contributed toward the burning of his said lands? Ans. No.” “74. Was the plaintiff guilty of any negligence in the setting, or in the escape of said fire from defendant’s right of way? Ans. No.” “75. Was the plaintiff guilty of any negligence or carelessness in or about the burning by said fire of his said lands? Ans. No.” “76. Is it not a fact that plaintiff was not guilty of any negligence or carelessness which in any way contributed to the escape of said fire or the spread thereof to his said lands or to the burning of his said lands, or to the damage which he suffered from said fire. Ans. No.” (Rec. p. 34, 11.5 to 27.)

It is clear, under the authorities, that interrogatories 74 and 75, call for conclusions and not statements of facts, and that the answers thereto are conclusions of law. See Wabash R. R. Co. v. Miller, 18 Ind. App. 549, and authorities there cited. Number 76 may have been misunderstood by the jury, but it having been answered in the negative, it is directly against the appellee. This only leaves finding 73 to be considered.

Standing alone, we do not think it sufficiently shows that appellee was free from fault. The interrogatory contains four elements, all of which are negative: (a) Did plaintiff do anything which aided the spread of the fire from the right of way; or (b) which contributed to the escape of the fire; or (c) which aided or contributed toward the spread of the fire to his lands; or (d) which aided or contributed to the burning of his lands? The jury answered this interrogatory in the negative, and hence we cannot say that there is a clear and distinct finding that appellee did not do anything contributing to the injury of which he complains; but there is no finding that he did anything to prevent the injury, after the fire was carried to his premises, or that he omitted to do anything which contributed to his injury. In plainer words, it finds that appellee did not do anything contributing to his injury, but it does not find or show that he did not omit to do something which he ought to have done.

In Galloway v. Chicago, etc., R. R. Co., 58 Am. and Eng. R. R. Cas. 251, it is said: “Negligence consists in doing something, or omitting to do something, which a person of ordinary prudence and care would not have done, or would not have omitted to do, under like or similar circumstances.” There are two classes or kinds of negligence, — active and passive. A person is equally liable for doing a negligent act, which would be active negligence, or in omitting to do an act, which would be passive negligence, where, by such omission, injury would follow. One person may do a negligent act w’hich may result in injury, but if the injured party stand passively by, and let the act produce its natural effects, such injured party cannot recover, if he failed to do something which a reasonably prudent man, under like circumstances, would have done, or could have done, by the doing of which he could have averted the injury, or natural result of the negligent act.

Thus, one person may negligently set fire upon his own premises, and negligently permit it to escape to the adjoining premises of his neighbor; yet if such other party stand by and see the fire destroy his property, when he could do something, without hazard, to prevent the injury, he cannot recover. He thus becomes passively negligent in failing to do something which it was his duty to do. As was said in Briant v. Detroit, etc., R. W. Co., 61 Am. and Eng. R. R. Cas. 523: “It is true that, if the fire had been started, and the plaintiff could have extinguished it, he would have been in fault in not doing so.”

The burden rested unon the appellee to prove that his own negligence, be it either active or passive, did not contribute to his injury. And it is not sufficient that the verdict is silent and there is nothing therein even tending to show either contributory negligence or freedom therefrom. As was said in Hinckley v. Cape Cod R. R. Co., 120 Mass. 275, and quoted approvingly by this court in the City of Huntingburg v. First, 15 Ind. App. 552: “Mere proof that the negligence of the defendant was a cause adequate to have produced the injury will not enable plaintiff to recover, as it does not necessarily give rise to the inference of due care upon his part, proof of which is essential in his case.” In that case gence of tlie defendant was sufficient to produce the injury complained of, yet it was still incumbent upon the plaintiff that the evidence show him free from fault. In the case under consideration it would be necessary for the appellee to prove and the verdict to find and state such facts. But the question we are now considering has been put at rest in this State, and there is now no longer any room for doubt or legitimate debate. The Supreme and this court have repeatedly held that in cases of this character, the special verdict must show what the plaintiff did, if anything, to prevent the injury, and if it fails to so show, the verdict is defective, and will not support a judgment.

The latest case, and in which the authorities are collected and cited, is that of the Wabash R. R. Co. v. Miller, supra. In that case the verdict was silent as to the negligence of the appellee, except that there was a finding that the injuries occurred without any fault or negligence on his part, which finding was held to be a conclusion of law and not a finding of a fact. The verdict was also silent as to what the appellee did or omitted to do, if anything, to prevent or avert the injury, except that there was a finding that appellee and members of his family made all reasonable efforts to subdue and extinguish the fire, and this finding was held to be a conclusion of law, and not the finding of a fact. Black, J., speaking for the court said: “When, in such a case, the property owner had notice of the fire endangering his property to the loss for which he 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 can not 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. Delaware and Hudson Canal Co., 13 Hun, 254; Hogle v. New York, etc., R. R. Co., 28 Hun, 363; Eaton v. Oregon, etc., Navigation Co., 19 Or. 391, 24 Pac. 415; Tilley v. St. Louis, etc., R. W. Co., 49 Ark. 535, 6 S. W. 8; Louisville, etc., R. W. Co. v. Lockridge, 93 Ind. 191; Wabash, etc., R. W. Co. v. Johnson, 96 Ind. 40; Cleveland, etc., R. W. Co. v. Hadley, 12 Ind. App. 516; Tien v. Louisville, etc., R. W. Co., 15 Ind. App. 304; Louisville, etc., R. W. Co. v. Porter, 16 Ind. App. 266; Chicago, etc., R. R. Co. v. Bailey, 19 Ind. App. 163. See, also, Louisville, etc., R. W. Co. v. Roberts, 18 Ind. App. 538, and authorities there cited. Also Cameron v. Oberlin, 19 Ind. App. 142.

The verdict here fails to show whether or not appellee, his agents or servants were present at the fire, and if present, or had knowledge of it, what he or they did if anything, to prevent the injury. In this regard the special verdict was defective, and it was error to overrule appellant’s motion for a venire de novo. The verdict failing to show all the essential facts entitling the appellee to a judgment, we might very properly direct judgment thereon in favor of appellant, but justice seems to demand a new trial. The judgment is therefore reversed, with directions to the court below to sustain appellant’s motion for a new trial, and for further proceedings not inconsistent with this opinion.