Baltimore & Ohio Southwestern Railroad v. Howard

Indiana Court of Appeals

Baltimore & Ohio Southwestern Railroad v. Howard

61 N.E. 1137, 27 Ind. App. 699, 1901 Ind. App. LEXIS 132

CourtIndiana Court of Appeals

DecidedOctober 25, 1901

DocketNo. 3,454

StatusPublished

This text of 61 N.E. 1137 (Baltimore & Ohio Southwestern Railroad v. Howard) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Baltimore & Ohio Southwestern Railroad v. Howard, 61 N.E. 1137, 27 Ind. App. 699, 1901 Ind. App. LEXIS 132 (Ind. Ct. App. 1901).

Pincite

Opinion

Roby, J.

— Appellee’s second paragraph of complaint charged appellant with negligently allowing combustible material to accumulate upon its right of way, and with negligently setting fire to such material upon such right of way, thereby inflicting damage to his property. The jury found for appellee upon this paragraph, in the sum of $62.50, and the correctness of the judgment rendered by the trial court upon the verdict is the sole question for decision here. The theory of the pleading was that appellant had negligently suffered combustible material to accumulate upon its right of way, and had negligently set fire to such material upon such right of way. With the general verdict the jury returned answers to six interrogatories. Appellant’s motion for judgment thereon notwithstanding the general verdict was overruled.

In its brief the position assumed by appellant is stated as follows: “These answers to interrogatories completely support the appellant’s contention. The fifth, finding that the fire did not originate in combustible material on the right of way of the defendant. If it did not, the negligence alleged did not exist, and there was no right to recover on account of the matters set out in said second paragraph of complaint.”

Immediately preceding the foregoing statement the third, fourth, and fifth interrogatories are correctly set out in the brief. These interrogatories, and answers, are as follows: “(3) Did the fire mentioned in the second paragraph of the plaintiff’s complaint occur October 16, 1899? A. Yes. (4) Did said fire originate on the plaintiff’ s right of way? A. No. (5) Did said fire originate on the plaintiff’s right of way in combustible material then on said right of way? No.”

It would appear that appellant’s counsel had been misled by the use of the word plaintiff in the interrogatory instead of defendant, except for the sixth and seventh interrogatories and the answers, which are [700]*700as follows: "(6) Did said fire originate on the defendant’s right of way and from thence spread to plaintiff’s land? A. Yes, sir. (7) Did said fire of October 16,1899, originate on the lands of the plaintiff and beyond the defendant’s right of way? A. No.”

Two reasons are given in support of the assignment of error that the court erred in overruling the motion for a new trial. Neither of them are plausible. Judgment affirmed, with ten per cent, damages.

Free access — add to your briefcase to read the full text and ask questions with AI

Roby, J.

— Appellee’s second paragraph of complaint charged appellant with negligently allowing combustible material to accumulate upon its right of way, and with negligently setting fire to such material upon such right of way, thereby inflicting damage to his property. The jury found for appellee upon this paragraph, in the sum of $62.50, and the correctness of the judgment rendered by the trial court upon the verdict is the sole question for decision here. The theory of the pleading was that appellant had negligently suffered combustible material to accumulate upon its right of way, and had negligently set fire to such material upon such right of way. With the general verdict the jury returned answers to six interrogatories. Appellant’s motion for judgment thereon notwithstanding the general verdict was overruled.

In its brief the position assumed by appellant is stated as follows: “These answers to interrogatories completely support the appellant’s contention. The fifth, finding that the fire did not originate in combustible material on the right of way of the defendant. If it did not, the negligence alleged did not exist, and there was no right to recover on account of the matters set out in said second paragraph of complaint.”

Immediately preceding the foregoing statement the third, fourth, and fifth interrogatories are correctly set out in the brief. These interrogatories, and answers, are as follows: “(3) Did the fire mentioned in the second paragraph of the plaintiff’s complaint occur October 16, 1899? A. Yes. (4) Did said fire originate on the plaintiff’ s right of way? A. No. (5) Did said fire originate on the plaintiff’s right of way in combustible material then on said right of way? No.”

It would appear that appellant’s counsel had been misled by the use of the word plaintiff in the interrogatory instead of defendant, except for the sixth and seventh interrogatories and the answers, which are [700]*700as follows: "(6) Did said fire originate on the defendant’s right of way and from thence spread to plaintiff’s land? A. Yes, sir. (7) Did said fire of October 16,1899, originate on the lands of the plaintiff and beyond the defendant’s right of way? A. No.”

Two reasons are given in support of the assignment of error that the court erred in overruling the motion for a new trial. Neither of them are plausible. Judgment affirmed, with ten per cent, damages.

Cite This Page — Counsel Stack

Bluebook (online)

61 N.E. 1137, 27 Ind. App. 699, 1901 Ind. App. LEXIS 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baltimore-ohio-southwestern-railroad-v-howard-indctapp-1901.