Lake Erie & Western Railroad v. Clark

34 N.E. 587, 7 Ind. App. 155, 1893 Ind. App. LEXIS 231

• Court: Indiana Court of Appeals
• Decided: June 20, 1893
• Docket: No. 760
• Status: Published

Opinion

Gavin, C. J.

The appellee sued appellant to recover damages resulting from a fire started by appellant in grass and weeds negligently permitted to accumulate upon its right of way, which was by appellant negligently permitted to escape to appellee’s land, all occurring without any contributory negligence upon the part of appellee.

It is urged that the complaint is bad for want of averments that the fire was caused by some negligent act or defective machinery of appellant. Such averments are unnecessary.

If appellants set fire to the dry grass and other combustible materials which it had negligently suffered to accumulate on its track and right of way, and without fault on appellee’s part negligently permitted such fire to escape to his lands and burn and destroy his property, appellant would be liable to appellee for his damages, whether such fire was started negligently or otherwise. Pittsburgh, etc., R. W. Co. v. Jones, 86 Ind. 496; Indiana, etc., R. W. Co. v. Overman, 110 Ind. 538; Louisville, etc., R. W. Co. v. Hart, 119 Ind. 273.

Complaint is made of the action of the court in overruling a motion to make the complaint more specific.

In order to so present any question upon this ruling as to enable us to consider it, the motion should have been brought into the record by a bill of exceptions. This has not been done, and without this the motion is not properly authenticated as a part of the record. Elliott’s App. Proced., section 814.

The overruling of the motion for a new trial is also assigned as error.

The causes urged in favor of a new trial are that the damages assessed are excessive, and that the Verdict is not sustained by the evidence.

A transcript of evidence certified by the shorthand reporter is attached to the transcript, but it is not incorporated into any bill.of exceptions, nor is there anything in the record which purports to be a bill of exceptions signed by the judge. This is absolutely necessary in order to present for review the questions attempted to be raised. Without its authentication by the judge the stenographer’s report of the evidence is entirely without force. Elliott’s App. Proced., section 821; Louisville, etc., R. W. Co. v. Kane, 120 Ind. 140.

Filed June 20, 1893.

Judgment affirmed.