The Toledo, etc., R. W. Co. v. Wand. In the first, the appellee avers that the appellant, in June, 1869, by her agents and employees, were running a locomotive and train of cars through Warren county, Indiana, and adjoining appellee's premises, negligently and carelessly set on fire the said premises from sparks and coals of fire escaping from said engine, and that said fire consumed and destroyed four hundred rails in the fence on said premises, and two acres of pasture, of the value of twenty-five dollars, etc. The second cause is similar to the first, for setting fire to and destroying six hundred rails, in August, 1869, of the value of thirty-five dollars. And the third, for destroying in like manner three hundred rails, in June, 1871, of the value of twenty-five dollars, by so carelessly and negligently running their locomotive. Judgment for the appellee before the justice; appeal to the Warren Circuit Court, in which a jury trial was had, resulting in a verdict for the appellee. Motion for a new trial overruled. Exceptions, and appeal to this court. During the trial, the appellee offered to prove by competent witnesses, that the sides of the railway track at Wand's farm had dry rubbish, logs, and grass thereon. To this evidence the appellant objected, because it did not support the allegation of the complaint, which alleged that the fire was directly communicated to the plaintiff's property by sparks and coals, etc. The objection was overruled, and proper exceptions taken. There was no error in this. If the appellant ran her locomotive amidst combustible material, easily ignited, which lay adjoining to the appellee's premises, it tended to show negligence and carelessness. It was not necessary on the part of the appellee to show that his premises were first set on fire. If the appellant carelessly and negligently ignited inflammable substances on the railroad track, the natural tendency of which was to conduct the fire to the premises of the appellee lying adjacent thereto, the fact would tend to establish the case against the appellant. And we think the causes of action sufficiently stated the case to admit this evidence. The com The Toledo, etc., R. W. Co. v. Wand. plaint informed the appellant of the charge, and put her upon notice to defend against all her acts which tended to prove her negligence and carelessness, as stated in the complaint. This is sufficient before a justice of the peace. The White Water Valley R. R. Co. v. Quick, 30 Ind. 384. The appellant asked the court to instruct the jury as follows: "5. But the railway company is not liable for injuries to the property of others by fire emitted from its engines, if properly equipped with spark-arresters, and operated with reasonable care and diligence. "11. To entitle the plaintiff to recover in this case, you must be satisfied from the evidence that the fire which caused the plaintiff's injury caught by the sparks emitted by the locomotive, through the negligence of the defendant in failing, for example, to have the locomotive equipped with a proper and approved spark-arrester, or some such negligent act or omission. "13. If, therefore, the plaintiff has suffered injury from the defendant, by the legitimate use of fire and steam, under such precautions as to spark-arresters as are in approved general use on the railroads, there is what is called damnum absque injuria—an injury without a remedy." These instructions were refused by the court, and the appellant took her exceptions. There was no error in refusing instruction 5. A railroad might be "properly equipped with spark-arresters," and yet have other defects by which it communicated fire to the appellee's premises; it might be "operated with reasonable care and diligence," in reference to the road itself, yet run among combustible materials, and thus set fire to the appellee's premises. Instruction 11 is plausibly worded, but it contains a lurking error in confining the negligence to "the sparks emitted by the locomotive, through the negligence of the defendant in failing" to equip her locomotive " with a proper and approved spark-arrester, or some such negligent act or omission." The Toledo, etc., R. W. Co. v. Wand. Any other negligence in running the locomotive and train by which the fire was communicated to the appellee's premises might have been equally injurious to his property. The instruction was therefore rightly refused. Instruction 13 is erroneous for the same reasons stated above, only the error it contains is more palpable than it appears in 11. It was also virtually decided by the ruling above, on the question of admitting evidence, and need not be further noticed. The court, of its own motion, gave the following instructions, to which the appellant excepted: "1. It is the duty of railroad companies to use their property so as not to injure the property of others. If they use such precaution, they are not liable for injuries of the kind complained of. To use such precautions, they must provide proper spark-arresters, the best of such as are approved by use, and they must also take such reasonable precautions with their track as would tend to prevent such injuries. It is for you to say, under the evidence, whether these precautions have been used. If you find they have been, you will find for the defendant; if not, you will find for the plaintiff. “2. If you find that the fire mentioned in the third paragraph of the complaint was caused by the defendant's locomotive, which caught first within the plaintiff's field, then there is no question under that paragraph as to the condition of grass and rubbish on the defendant's track; and the only question under that paragraph is as to the precautions used by the company as to the arrest of sparks; and if they have not been negligent in that particular, the plaintiff cannot recover for the injury complained of in that paragraph." We can perceive no error in these instructions. They are fully supported, in our opinion, by the following authorities: Bass v. Chicago, Burlington & Quincy R. R. Co., 28 Ill. 9; St. Louis, Alton & Terre Haute R. R. Co. v. Gilham, 39 Ill. 456; Bedford v. Hannibal & St. Joseph R. R. Co., 46 Mo. 456; Kellogg v. The Chicago, etc., R. W. Co., 26 Wis. 223; Flynn v. 48 480 165 596 Herod et al. v. Snyder. San Francisco & San Jose R. R. Co., 40 Cal. 14; and Bedell v. The Long Island R. R. Co., 44 N. Y. 367. The appellant claims a reversal on the weight of evidence. We have examined it carefully, and are of opinion that it fairly sustains the verdict. The judgment is affirmed. HEROD ET AL. v. SNYDER. SET-OFF.-A purchaser of personal property, sold with a warranty of soundness, executed his note for the purchase-money to the vendor, and the latter assigned the note. Pending a suit by the assignee, the maker sued the payee for a breach of his warranty, and recovered judgment. He then pleaded the judgment as a set-off. Held, that the judgment was a proper set-off, the note not being negotiable by the law merchant. WARRANTY.-Pleading.-It is a good reply to the defence of a breach of warranty pleaded to a suit upon a promissory note given for personal property, that a judgment has been recovered by the maker of the note for the damages sustained by such breach of warranty. From the Bartholomew Circuit Court. W. W. IIcrod and F. Winter, for appellants. PETTIT, J.-This suit was brought by the appellee, John "$34.00. COLUMBUS, April 10th, 1871. "Two months after date, we promise to pay to the order of W. H. Newby thirty-four dollars, value received, without any relief from valuation and appraisement laws of the State Herod et al. v. Snyder. of Indiana; if this note be collected by suit, the judgment shall include the reasonable fee for plaintiff's attorney. "A. W. HEROD. Endorsed: "For value received, I assign the within note W. H. NEWBY." to John F. Snyder. The case was appealed to the circuit court, where a regular and proper complaint was filed on the note, to which the defendants answered in two paragraphs. The first paragraph is, in substance, that said William E. Herod signed the note as surety for Augustus W. Herod; that the note was given for part of the consideration for a horse. sold by Newby, the payee of the note, to Augustus W. Herod. It is averred that Newby warranted the horse to be sound, when he was unsound and wholly worthless. The second paragraph is pleaded as a set-off, and, after stating the averments of the first paragraph, it is alleged that said Augustus W. Herod instituted an action against said Newby, on said warranty, and recovered a judgment for thirty-five dollars, which amount appellants offered to set off against so much of appellee's claim. A transcript of the judgment against Newby is made a part of this answer, and it shows that the action was commenced on the 27th of March, 1872, after the suit of appellee against appellants was pending. Snyder demurred severally to the paragraphs of answer, which was sustained as to the second and overruled as to the first paragraph. A reply was then filed to the first paragraph of answer, in substance, as follows: The note was given for a balance of purchase-money for a horse sold by Newby to Augustus W. Herod, who, after the pendency of appellee's action, and after the assignment of the note in suit by Newby to Snyder, and after notice thereof by said Herod, instituted an action on said warranty against said Newby before a justice of the peace, on the warranty set up in the answer, and recovered a judgment for eight dollars and costs, which judgment stands in full force, unappealed from. VOL. XLVIII.—31 |