
    No. 10,044.
    The Louisville, New Albany and Chicago Railway Company v. Spenn.
    
      Negligence. — Railroad.—Injwry by Fires Spreading. — Pleading.—In a suit-against a railroad company for injury by the spread of fire to adjoining-premises, -a complaint is bad which does not charge negligence in permitting the fire so to spread. Woods, C. J., dissents.
    From the Carroll Circuit Court.
    
      A. W. Reynolds and E. B. Sellers, for appellant.
    
      J. A. Batson and D. Turpie, for appellee.
   Niblack, J.

This was an action commenced by Henry Spenn against the Louisville, New Albany and Chicago Railway Company, in the White Circuit Court, for damages 'for the destruction of certain property by fire, and taken on a. change of venue to the Carroll Circuit Court.

The complaint was in two paragraphs, and demurrers were severally overruled to both paragraphs. Verdict and judgment for the plaintiff.

The first paragraph of the complaint charged that, on the-12th day of August, 1881, the plaintiff was the owner of a certain tract of laud in the county of White, near the track of the railway company; that, on that day, the railway company so negligently conducted the running of one of its engines on its track as to set fire to certain grass, weeds and other combustible material, which had been permitted to accumulate upon its, the company’s, right of way, near the plaintiff’s land; that the fire thus kindled communicated to the plaintiff’s land, and burned up and destroyed the plaintiff’s fence and other property situated thereon, to the plaintiff’s damage.

In all that is material to its sufficiency at the present hearing, the averments of the second paragraph were substantially the same as those of the first paragraph, a partial synopsis of which is given as above. Error is so assigned as to raise the-question of the sufficiency of both paragraphs of the complaint upon demurrer. Both paragraphs failed to charge that the fire, started on the defendant’s right of way, was negligently permitted to escape on to the plaintiff’s land, and it is contended in argument here, that for that reason the demurrers ought to have been sustained td both paragraphs.

Tested by some of the more recent decisions of this court involving the precise question thus presented, both paragraphs-of the complaint were fatally defective. The complaint in this case was essentially similar to the one before us in the case of Louisville, etc., R. W. Co. v. Ehlert, post, p. 339, and for the reasons given in the opinion in that case the judgment below will have to be reversed.

The judgment is reversed, with costs, and the cause remanded for further proceedings.

Woods, C. J., dissents.

Petition for a rehearing overruled.  