Niblack, J.
Joseph W. Ostrander was, at the time of the trial of this cause, and for many years previously had been, the owner of a tract of land in Vigo county constituting a farm, and lying adjacent to a line of railroad operated by the Chicago and Eastern Illinois Railroad Company.
About the last day of July or the first day of August, 1881, an excursion train belonging to that company passed Ostrander’s farm going north. The season was at that period a very dry one, and soon after the train had passed a' fire broke out on Ostrander’s land contiguous to the railroad line, which resulted in burning a part of a line of his fence and in destroying a considerable number of his fruit trees.
Ostrander thereupon commenced this action against the railroad company for the damages resulting from the fire, upon the ground that the company had negligently caused the injury to be inflicted.
The complaint was in four paragraphs. The first charged, in general terms, that the defendant had negligently set fire [261]*261to and destroyed the plaintiff’s property. The second averred that the defendant, by its engine, had set fire to certain combustible materials which had been allowed to accumulate on its right of way, and had negligently permitted the fire thus set by it to escape on to the plaintiff’s adjacent land, thereby inflicting the injury sued for. The third was based upon the alleged ground that, by reason of defective netting in the smoke-stack of the defendant’s engine, fire had escaped and destroyed the property for which damages were demanded. The fourth complained that the defendant had negligently permitted combustible materials to accumulate on its track and adjacent right of way; that it had negligently suffered fire to be emitted from its engine and to set fire to such combustible materials, and that it had further negligently suffered the fire to escape and to spread on to the plaintiff’s land, to his injury as alleged.
There was a general verdict for the plaintiff, assessing his damages at $405. This verdict was accompanied by answers to interrogatories propounded to the jury, at the request of the plaintiff, as follows :
“ 1. Did the engine of defendant, by throwing sparks, set fire to plaintiff’s property?” Answer. “Yes.”
“ 2. Was the engine which set fire to plaintiff’s property properly equipped with a good spark-arrester ? ” Answer “ Not satisfied from the evidence that it was.”
“ 3. Was the spark-arrester in the engine of defendan defective ? ” Answer. “ Not satisfied.”
“4. Was there any negligence on the part of plaintiff, Ostrander, that contributed to the injury complained of?” Answer. “ No.”
“ 5. Was the plaintiff’s property destroyed by the negligence of defendant, and without any negligence of plaintiff? ” Answer. “ Yes.”
“ 6. Was there negligence by defendant in the use of fuel on the engine which caused the fire ? ” Answer. “ Yes.’’
“ 7. Did the negligent use of wood fuel on defendant’s [262]*262engine cause the emission of sparks which kindled the fire that destroyed plaintiff’s property ? ” Answer. “ Not satisfied on this subject by the evidence.”
The general verdict was also accompanied by answers to other interrogatories submitted to the jury at the defendant’s request, to the following effect:
“ 1. Did the defendant have competent servants in charge of its engine which is claimed to have caused the damage in this cause ? ” Answer. “ Not satisfied that it did.”
“ 2. Did the defendant have in use on its engine in question in this cause the most approved spark-arrester then known?” Answer. “Yes.”
“ 3. Did the defendant use reasonable care to keep said spark-arrester in good repair?” Answer. “Not satisfied that it did.”
“ 4. Did the defendant use due diligence to keep its right of way free from combustible materials ? ” Answer. “ Yes.” “ 5. 'Did the defendant use due diligence to prevent the escape and spread of fire ? ” Answer. “ From the evidence we don’t know.”
“ 6. Did the fire originate on defendant’s right of way?” Answer. “ Not sufficient evidence to answer whether it did or not.”
“ 7. Did the plaintiff use such reasonable diligence and means as were at his command to extinguish, or prevent further escape of, the fire from the right of way to his property, after he saw the fire, or to prevent its spread after he saw it burning ? ” Answer. “ Yes.”
“ 8. Was the spark-arrester used on defendant’s engine in good and proper order when it started on that trip?” Answer. “ Not satisfied from the evidence that it was.”
“ 9. Did the defendant use wood on the engine in question simply and necessarily for the purpose of kindling its fire just previous to and while starting out from Terre Haute on the trip in question ? ” Answer. “Yes.”
Upon a return of the verdict, the defendant moved for a [263]*263venire de novo upon the grounds: First. That some of the interrogatories were imperfectly answered. Second. That some of the answers to interrogatories were contradictory and inconsistent with each other. Third. That some of the answers in question were not separately signed by the jury. That motion being overruled, the defendant moved for judgment in its favor upon the answers to the interrogatories, notwithstanding the general verdict, and that motion being likewise overruled, the defendant moved for a new trial, basing its motion upon various exceptions reserved at the trial, with the same result.
The fact that answers to special interrogatories are contradictory, or inconsistent with each other, affords no ground for a venire de novo. "Where such answers are only contratradictory, or inconsistent, they neutralize each other and permit the general verdict to remain unimpaired. Rice v. Manford, 110 Ind. 596.
Where the jury has failed to answer an appropriate and material interrogatory, or has answered it defectively or imperfectly, or has omitted to verify the answer in some suitable way or place by the signature of its foreman, the proper practice is to object to the reception of the verdict, and the .accompanying papers pertaining to the interrogatories.
Where, as in this case, the verdict and such accompanying papers are received without objection, the party complaining can not afterwards have a venire de novo, or any other relief, from the failure of the jury in any of the respects stated. 1 Works Practice, sections 842 and 855, et seq.; West v. Cavins, 74 Ind. 265; Bedford, etc., R. R. Co. v. Rainbolt, 99 Ind. 551; Pittsburgh, etc., R. W. Co. v. Hixon, 110 Ind. 225.
It was, in brief, held in the case of Indianapolis, etc., R. R. Co. v. Paramore, 31 Ind. 143, that as the business of operating railways is a lawful business, no presumption of negligence arises from the fact of fire being communicated by an engine in use upon a railway, and that where the negligent [264]*264communication of fire by an engine is charged, the burden of proof is on the party complaining.
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Niblack, J.
Joseph W. Ostrander was, at the time of the trial of this cause, and for many years previously had been, the owner of a tract of land in Vigo county constituting a farm, and lying adjacent to a line of railroad operated by the Chicago and Eastern Illinois Railroad Company.
About the last day of July or the first day of August, 1881, an excursion train belonging to that company passed Ostrander’s farm going north. The season was at that period a very dry one, and soon after the train had passed a' fire broke out on Ostrander’s land contiguous to the railroad line, which resulted in burning a part of a line of his fence and in destroying a considerable number of his fruit trees.
Ostrander thereupon commenced this action against the railroad company for the damages resulting from the fire, upon the ground that the company had negligently caused the injury to be inflicted.
The complaint was in four paragraphs. The first charged, in general terms, that the defendant had negligently set fire [261]*261to and destroyed the plaintiff’s property. The second averred that the defendant, by its engine, had set fire to certain combustible materials which had been allowed to accumulate on its right of way, and had negligently permitted the fire thus set by it to escape on to the plaintiff’s adjacent land, thereby inflicting the injury sued for. The third was based upon the alleged ground that, by reason of defective netting in the smoke-stack of the defendant’s engine, fire had escaped and destroyed the property for which damages were demanded. The fourth complained that the defendant had negligently permitted combustible materials to accumulate on its track and adjacent right of way; that it had negligently suffered fire to be emitted from its engine and to set fire to such combustible materials, and that it had further negligently suffered the fire to escape and to spread on to the plaintiff’s land, to his injury as alleged.
There was a general verdict for the plaintiff, assessing his damages at $405. This verdict was accompanied by answers to interrogatories propounded to the jury, at the request of the plaintiff, as follows :
“ 1. Did the engine of defendant, by throwing sparks, set fire to plaintiff’s property?” Answer. “Yes.”
“ 2. Was the engine which set fire to plaintiff’s property properly equipped with a good spark-arrester ? ” Answer “ Not satisfied from the evidence that it was.”
“ 3. Was the spark-arrester in the engine of defendan defective ? ” Answer. “ Not satisfied.”
“4. Was there any negligence on the part of plaintiff, Ostrander, that contributed to the injury complained of?” Answer. “ No.”
“ 5. Was the plaintiff’s property destroyed by the negligence of defendant, and without any negligence of plaintiff? ” Answer. “ Yes.”
“ 6. Was there negligence by defendant in the use of fuel on the engine which caused the fire ? ” Answer. “ Yes.’’
“ 7. Did the negligent use of wood fuel on defendant’s [262]*262engine cause the emission of sparks which kindled the fire that destroyed plaintiff’s property ? ” Answer. “ Not satisfied on this subject by the evidence.”
The general verdict was also accompanied by answers to other interrogatories submitted to the jury at the defendant’s request, to the following effect:
“ 1. Did the defendant have competent servants in charge of its engine which is claimed to have caused the damage in this cause ? ” Answer. “ Not satisfied that it did.”
“ 2. Did the defendant have in use on its engine in question in this cause the most approved spark-arrester then known?” Answer. “Yes.”
“ 3. Did the defendant use reasonable care to keep said spark-arrester in good repair?” Answer. “Not satisfied that it did.”
“ 4. Did the defendant use due diligence to keep its right of way free from combustible materials ? ” Answer. “ Yes.” “ 5. 'Did the defendant use due diligence to prevent the escape and spread of fire ? ” Answer. “ From the evidence we don’t know.”
“ 6. Did the fire originate on defendant’s right of way?” Answer. “ Not sufficient evidence to answer whether it did or not.”
“ 7. Did the plaintiff use such reasonable diligence and means as were at his command to extinguish, or prevent further escape of, the fire from the right of way to his property, after he saw the fire, or to prevent its spread after he saw it burning ? ” Answer. “ Yes.”
“ 8. Was the spark-arrester used on defendant’s engine in good and proper order when it started on that trip?” Answer. “ Not satisfied from the evidence that it was.”
“ 9. Did the defendant use wood on the engine in question simply and necessarily for the purpose of kindling its fire just previous to and while starting out from Terre Haute on the trip in question ? ” Answer. “Yes.”
Upon a return of the verdict, the defendant moved for a [263]*263venire de novo upon the grounds: First. That some of the interrogatories were imperfectly answered. Second. That some of the answers to interrogatories were contradictory and inconsistent with each other. Third. That some of the answers in question were not separately signed by the jury. That motion being overruled, the defendant moved for judgment in its favor upon the answers to the interrogatories, notwithstanding the general verdict, and that motion being likewise overruled, the defendant moved for a new trial, basing its motion upon various exceptions reserved at the trial, with the same result.
The fact that answers to special interrogatories are contradictory, or inconsistent with each other, affords no ground for a venire de novo. "Where such answers are only contratradictory, or inconsistent, they neutralize each other and permit the general verdict to remain unimpaired. Rice v. Manford, 110 Ind. 596.
Where the jury has failed to answer an appropriate and material interrogatory, or has answered it defectively or imperfectly, or has omitted to verify the answer in some suitable way or place by the signature of its foreman, the proper practice is to object to the reception of the verdict, and the .accompanying papers pertaining to the interrogatories.
Where, as in this case, the verdict and such accompanying papers are received without objection, the party complaining can not afterwards have a venire de novo, or any other relief, from the failure of the jury in any of the respects stated. 1 Works Practice, sections 842 and 855, et seq.; West v. Cavins, 74 Ind. 265; Bedford, etc., R. R. Co. v. Rainbolt, 99 Ind. 551; Pittsburgh, etc., R. W. Co. v. Hixon, 110 Ind. 225.
It was, in brief, held in the case of Indianapolis, etc., R. R. Co. v. Paramore, 31 Ind. 143, that as the business of operating railways is a lawful business, no presumption of negligence arises from the fact of fire being communicated by an engine in use upon a railway, and that where the negligent [264]*264communication of fire by an engine is charged, the burden of proof is on the party complaining.
The doctrine of that case was inadvertently disapproved in the more recent case of Pittsburgh, etc., R. W. Co. v. Hixon, 79 Ind. 111, but was reaffirmed when this latter case was again before this court (see Pittsburgh, etc., R. W. Co. v. Hixon, 110 Ind. 225), and is now, as formerly, the recognized law of this State in all cases in which it is applicable.
Counsel for the appellant contend that the answers to the interrogatories, relatively considered, either expressly by what they affirmed or impliedly by what they failed to affirm, found in favor of their client on all the specifications of negligence contained in the last three paragraphs of the complaint, and that, consequently, the appellee was not entitled to a judgment upon any one of those paragraphs; also, that no facts were specially found, or evidence introduced, which tended to sustain the first paragraph of the complaint, and that, for that reason, it was error to award him judgment on that paragraph. In support of this latter contention it is insisted that the answers to the fifth and sixth interrogatories submitted at the request of the appellee, were mere conclusions of law, and hence not findings upon particular questions of fact within the meaning of section 546, R. S. 1881. This position is well sustained directly, as well as indirectly, by the authorities.
It has practically become a legal maxim in this State that negligence is a mixed question of law and fact, and is a question of law where the facts are undisputed, and the inference to be drawn from them unequivocal. Gagg v. Vetter, 41 Ind. 228; Pittsburgh, etc., R. R. Co. v. Spencer, 98 Ind. 186 ; City of Indianapolis v. Cook, 99 Ind. 10.
But no question of negligence as a legal proposition arises until the facts from which negligence is supposed to have resulted are in some manner established. The answers under consideration were, consequently, mere legal conclusions, not resting upon any given or specific facts, and of no practical [265]*265value as supporting the first paragraph of the complaint. This view is in strict accord with the case of Toledo, etc., R. W. Co. v. Goddard, 25 Ind. 185, and generally with other moi’e recent cases. Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151.
Filed Jan. 21, 1888.
There is probably no subject in which the nisi prius courts so frequently fail in their duty as they do in permitting improper interrogatories to be submitted to juries. It is only concerning some particular question of fact material to the cause that an interrogatory can rightly be submitted. It is error, therefore, to require a j ury to answer an interrogatory which calls only for a legal conclusion. It often happens, as in this case, that such an error is a harmless one, upon the ground of the immateriality of the answer, but the submission of such an interrogatory is always, at least, an abstract error, which is calculated to confuse, if not mislead, the jury.
In a case like this, where the answers to the interrogatories are not conclusive of the merits of the controversy, all the presumptions are indulged in favor of the general verdict. Indianapolis, etc., R. R. Co. v. Petty, 30 Ind. 261; Graham v. Graham, 55 Ind. 23; Scott v. Zartman, 61 Ind. 328; Baltimore, etc., R. R. Co. v. Rowan, 104 Ind. 88.
There was evidence as to the unusual size and great number of sparks which were permitted to escape from the engine from which the jury might have inferred negligence in setting fire to the appellee’s property.
While there were many things brought out at the trial unfavorable to the appellee’s right to recover, we have no sufficient reason for reversing the judgment on the evidence.
Objections are urged to several of the instructions given at the trial, but these objections are referred to in such a casual and merely incidental way as not to require us to make any formal rulings upon them.
The judgment is affirmed, with costs.