Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Loos

Comstock, J. Appellee brought this action against appellant to recover damages alleged to have been occasioned by the negligent escape of fire from a certain locomotive of appellant’s in passing a certain slaughterhouse and stock pens situate near the track of appellant. The cause was put at issue and tried before a jury which returned a verdict in favor of appellee for $1,200. The jury also returned answers to interrogatories. Over appellant’s motion for judgment in its favor on answers to interrogatories notwithstanding the general verdict, and its motion for a new trial, judgment was rendered in favor of appellee on the verdict for the amount named therein. Appellant relies for reversal, as stated in its brief, upon the rulings of the court upon said two motions. As to the action of the court in overruling the motion for judgment on answers to interrogatories we need only refer to the settled rule that answers to interrogatories will prevail over the general verdict only when there is an irreconcilable conflict between them. The interrogatories and answers are not numerous and we give them. “(1) Was not the engine of the defendant which is alleged to have caused the fire that burned the plaintiff’s property described in the complaint known as 102 ? A. Yes. (2) Was not said engine provided with a sparkarrester of the best approved kind or equal to the best in use? A. No. (3) Was not the spark-arrester on the engine of the defendant which is claimed to have started the fire of the most approved style and the best known or equal to the best, for the prevention of the escape of fire ? A. We do not know. (4) Was the spark-arrester on the engine claimed to have fired the plaintiff’s property in good repair? A. We do not know. (5) If you answer ‘No’ to interrogatory No. 4, state specifically wherein the spark — 3 — arrester was out of repair. A. -. (6) Was not the engine claimed to have fired the plaintiff’s property and going through West Harrison, Indiana, properly operated by a skilled engineer? A. Ho. (7) If you answer 'Ho’ to question Ho. 6, state specifically wherein the engine was not properly operated. A. The engine was run at a high and dangerous rate of speed. (8) Was not the engineer in charge of engine at. the time of the fire a skilled engineer? A. Ho. (9) If you answer 'Ho’ to question Ho. 8, state specifically wherein said engineer was not skilled. A. The engineer run his engine Ho. 102 out of Harrison, Ohio, April 12, 1903, at a high and dangerous rate of speed and did not shut draft off engine in passing cattle sheds. (10) Bid not the fire originate off of the defendant’s right of way? A. It did.” There is a failure to answer some of these interrogatories. Some of the answers are inconsistent with others. This does not make the irreconcilable conflict contemplated by the statute, and so the general verdict should stand. Appellant complains of the action of the court in refusing to require the jury to answer definitely interrogatories three, four and five. ''It is the duty of the court, expressed in numerous decisions of the Supreme Court, to require a jury to give definite and specific answers to interrogatories when the evidence will warrant it.” Hammond, etc., R. Co. v. Spyzchalski (1897), 17 Ind. App. 7, 20, and cases cited; Hallwood Cash Reg. Co. v. Dailey (1905), 70 Kan. 620, 79 Pac. 158. There was evidence before the jury to warrant answering definitely the foregoing questions, and it was therefore error not to require them to do so. Appellee insists that the refusal of the court is not available error, because the answers to other interrogatories are such as to prevent recovery by the complaining party; citing, Wolf v. Big Creek Stone Co. (1897), 148 Ind. 317; Grand Rapids, etc., R. Co. v. Cox (1893), 8 Ind. App. 29. — 4 — We gather from the opinion in the first-named case that answers were returned to three interrogatories, and that one of the reasons for a new trial was based upon an instruction directing the jury to return more definite answers to these interrogatories. The court say: “Whether there was error in this we need not inquire, for the reason that even if the three answers were to be taken as originally returned, as appellants contend.they ought to be, yet such answers, together with the remaining answers, over two hundred in number, would show such a state of facts as must preclude any recovery by appellant.” And in the case of Grand Rapids, etc., R. Co. v. Cox, supra, the court say: “Where the answers to interrogatories refused could not have controlled the general verdict, there is no available error in refusing them.” We can not say that the answers to the interrogatories before us might not have controlled the general verdict. We can not say what answers the jury may return to interrogatories, further than that they would be governed by the evidence, nor how such answers may influence the individual juror. When particular facts, entering into the general verdict are shown, by answers to interrogatories, the inconsistency between the facts thus specially found and the general verdict may be so apparent that jurors will be unwilling to assume the responsibility of such inconsistency. The evidence, without contradiction, shows that the spark-arrester was equal to the best device in use to prevent the escape of fire and in perfect order. The engineer, a man of large experience, testified that he knew nothing that could have been done, more than was done, to prevent the throwing of fire, and at the same time practically operate the train. George Blaicher testified in behalf of appellee as to the burning of the property. Upon cross-examination appellant asked him the following question: “Well now, don’t you know, George, that it was rumored around there that you started that fire ?” Plaintiff’s objection to the question — 5 — was sustained. The defendant then asked the following: “I will ask you to state to the jury, George, if you have not heard the charge that you were in there and started that fire.” Plaintiff’s objection to the question was sustained, and the defendant then offered to prove that the witness, soon after the fire, was informed that it was rumored that he had set the building on fire. The court still sustained the objection. In this ruling of the court we think there was no error. Plaintiff introduced a witness — Charles Dare — and, for the purpose of proving facts from which the inference might be drawn that the spark-arrester of the engine in question was out of repair, showed by the witness that at the time this particular train and engine passed his mill, situate just north of the depot at Harrison, he was standing in the ware-room of the mill, which is located next to the railroad and is covered with a tin roof. Plaintiff next asked the witness the following question: “You may state, Mr. Dare, what you observed, if anything, on mornings prior to April 12 at the time of -the passage north of this through train.” Defendant objected to the question on the ground that it was not shown that upon other mornings this same engine was pulling the train referred to in the question. Objection was overruled and the witness answered: “I have observed they were blowing a good many sparks, and they set the grass afire and the shed of the old distillery this side of the cattle pens several times, and I went up there several times and put it out, and it was a precaution in dry weather that we follow the train up morning and evening.” Defendant moved to strike out that part of the answer of witness to the question in which he said, they took the precaution in dry weather to. follow the train up, for the reason that it was not responsive to' the question. The motion was overruled. This was error., If the fire in question was set by any locomotive of the appellant company, its loco — 6 — motive Uo. 102 was clearly identified as the one at fault. Under such circumstances it was competent to show that the same locomotive, on the same trip, at about the same time and place, set other fires in its passage, as raising an inference of some weight that there was something defective in its construction and management. Patton v. St. Louis, etc., R. Co. (1885), 87 Mo. 117, 56 Am. Rep. 446. But where it is shown that a particular engine set fire to property, it is not competent to show generally that the defendant’s engines have caused fires at other times and places. Ireland v. Cincinnati, etc., R. Co. (1890), 79 Mich. 163, 44 N. W. 426; Jacksonville, etc., R. Co. v. Peninsular Land, etc., Co. (1891), 27 Fla. 1, 9 South. 661, 17 L. R. A. 33; Chicago, etc., R. Co. v. Gilmore (1899), 22 Ind. App. 466, and cases cited. The reported cases are not in accord upon this question, but Chicago, etc., R. Co. v. Gilmore, supra, is the latest expression in this State. The motion to strike out the part of the above answer should have been sustained. It was not responsive and would not have been admissible even if responsive. The various paragraphs of the complaint are upon the theory of the insufficiency or want of repair of a sparkarrester on appellant’s locomotive. Certain instructions given by the court involve the question of the negligent operation of the engine irrespective of the insufficiency or want of repair of the spark-arrester. Such instructions were outside the issues. The recovery, if at all; should-be upon the negligence alleged in the complaint. We do not deem it necessary to consider other alleged errors. We express no opinion as to the merits of the case. Eor the errors stated the judgment is reversed, with instructions to sustain the motion for a new trial. Black, P. L, absent. Robinson, J. I do not agree with the opinion so far as it holds that there was error in the court’s refusal to require more definite answers to the interrogatories. But — 7 — the judgment should he reversed because of the admission of the evidence mentioned in the opinion. Myers, J. The admission of the evidence as to fires caused by other engines than the one averred in the complaint at other times and places was improper, and for this reason alone I think the case should be reversed. Wiley, J. I concur in the conclusion upon the ground stated by Robinson and Myers, JJ. Roby, C. J., dissents.