Baltimore & Ohio Southwestern Railroad v. Malott

98 N.E. 382, 50 Ind. App. 697, 1912 Ind. App. LEXIS 77

• Court: Indiana Court of Appeals
• Decided: May 8, 1912
• Docket: No. 7,661
• Status: Published

Opinion

Ibach, P. J.

— This was an action to recover damages from appellant for the destruction by fire of a stock of mercantile goods owned by appellees Claude G. and Noble Malott. The theory of the complaint was that the negligence of appellant permitted large sparks, cinders and coals to be emitted from its engine, and set fire to a pork house in Tunnelton, Indiana, from which it spread to the Knights of Pythias building, in which appellees’ general store was located. A damage suit for the destruction of the Knights of Pythias building was considered by this court in the case of Baltimore, etc., R. Co. v. Reed (1912), ante, 220, 98 N. E. 141.

It is argued that the evidence is insufficient to sustain the verdict, and that the court erred in giving and refusing to give certain instructions. The propositions raised have been decided practically against appellant in the case of Baltimore, etc., R. Co. v. Reed, supra. What was said in the opinion in that case concerning the sufficiency of the evidence, which was substantially the same in the two eases, decides that the verdict in the present case is sustained by the evidence. Somewhat different objections are presented to some of the instructions, although many of the points raised in argument on the instructions are the same as in the former ease. On consideration of the instructions as a whole, we are convinced that those given state the law of the case fully and correctly and that those refused were rightly refused.

On the authority of Baltimore, etc., R. Co. v. Reed, supra, the judgment is affirmed.