pany the duty of exercising ordinary care toward the said wood. If the wood was placed upon the line of the railroad and within the right-of-way, without authority of appellant, the appellee could not recover, because he was guilty of negligence in exposing his property to the dangers and hazards incident to the running of locomotives over the track of said road. If, on the other hand, the wood was placed there under a contract of purchase, and the agents of appellant unreasonably neglected to measure and accept the same, and it was destroyed by the negligence of the agents of the appellant, the appellant would be liable.

The contract set out in that complaint presents a different case from the one under consideration; and we understand that case as recognizing the principle of contributory negligence as applicable in this class of cases. The complaint was not copied, and the substance given says nothing in relation to its containing an averment negativing contributory negligence in the plaintiff. The decision was made upon an objection to the complaint, for the want of sufficient facts, without a demurrer having been filed, and this question was not presented nor decide'l by the court. But, even under this authority, the paragraph numbered sixteen is clearly bad for other reasons, heretofore pointed out.

We are also referred to the case of the Indianapolis, etc., R. R. Co. v. Paramore, 31 Ind. 143. In that case the complaint alleged "that the railroad company, by its agent, contracted and agreed with the plaintiff that if he would deliver on the line of the company's railroad track, at or near the town of New Point, in the county of Decatur, and at such places as were indicated by such agent, a quantity of cordwood for the use of the company, that the latter would, at reasonable times, and at least once a month, measure and pay for the same a fair cash price; that, in pursuance of said contract, and in accordance with the instructions of said agent, the plaintiff did, in September, 1865, deliver as directed one hundred and twenty cords of wood, of the value of $500, of which the defendant had notice. Yet the defendant failed and refused to measure said wood, for a long time, to wit, for more than one month; and that before the same was measured, it was totally burned up and destroyed by fire, originating from a locomotive engine of the defendant, and caused by the fault, carelessness and negligence of the employees of the defendant," etc. Under which statement the court says: "A contract between the parties in reference, to the wood, and its delivery on the line of the railroad under the direction of the defendant's agent, are clearly alleged, as well as the failure of the defendant to measure and pay for the wood within the time limited. . . . We think the averments are sufficient to exclude the idea that any negligence on the part of the plaintiff contributed to the result. It cannot be inferred from the facts alleged that the plaintiff was in any wise an actor in the mat

ter of the fire. It is averred that he deposited the wood on the line of the railroad under the direction of the defendant's agent. He had no connection with, or charge over, the locomotive from which it is alleged the fire originated. The injury was not to him personally, but to his inanimate property, and, for aught that appears, in his absence; and it is averred that the injury was caused by the negligence and carelessness of the defendant's servants and employees. It is very dissimilar to a case where the action is brought for a personal injury to a passenger on a train, or to one, not a passenger, who is struck or run over by a passing train, in which the plaintiff is necessarily present and an actor, and where his own negligence may readily contribute to the injury.

That case does not ignore the application of the principle of contributory negligence to this class of cases, but is based upon the fact that the averments in the complaint sufficiently showed there was no contributory negligence on the part of the plaintiff without any direct averment of that kind. The fact that the plaintiff may have been absent at the time of the fire, and did not actively participate in the burning, by no means relieves him from the responsibilities that he may have incurred, by contributing to the causes which produced the burning of the wood.

Contributory negligence in approximate injuries, caused by fire being communicated by the running of trains on railroads, may not so readily appear as in direct injuries to the person, yet we understand the same principle is alike applicable to both classes of cases. When the charge is one of wilful negligence, the plaintiff need not negative in his complaint contributory negligence, for the reason that that makes the defendant liable, notwithstanding contributory negligence. In cases of negligence, not charged to be wilful, we understand the rule to be, that the plaintiff must aver in his complaint, that he was without fault or negligence, or state such facts as will show that he was not guilty of any negligence. In support of this rule, we refer to the following decisions of this court: The President, etc., v. Dusouchett, 2 Ind. 586; The Evansville, etc., R. R. Co. v. Hiatt, 17 Ind. 102; The Toledo, etc., R. W. Co. v. Thomas, 18 Ind. 215; The Toledo, etc., R. W. Co. 2. Goddard, 25 Ind. 185, and authorities therein cited, 197; The Jeffersonville R. R. Co. v. Hendricks, Adm'r, 26 Ind. 228; The Michigan, etc., R. R. Co. v. Lantz, 29 Ind. 528; The Indianapolis, etc., R. R. Co. v Keeley's Adm'r, 23 Ind. 133; The Bellefontaine R. W. Co. v. Hunter, 33 Ind. 335; Newhouse v. Miller, 35 Ind. 463; Maxfield v. The Cincinnati, etc., R. R. Co., 41 Ind. 269; Riest v. the City of Goshen, 42 Ind. 339; Hathaway v. The Toledo, etc., R. W. Co., 46 Ind. 25; Jackson v. The Indianapolis, etc., R. R. Co., 47 Ind. 454; Higgins v. The Jeffersonville, etc., R. R. Co., 52 Ind. 110; The Cincinnati, etc., R. R. Co. v. Eaton, 53 Ind. 307; The Louisville, etc., R. R. Co. v. Boland, 53 Ind.

398; The Jonesboro, etc., T. P. Co. v. Baldwin, 57 Ind. 86; Gormley v. The Ohio, etc., R. W. Co., 72 Ind. 31; The Terre Haute, etc., R. R. Co. v. Clark, 73 Ind. 168.

This unbroken line of the decisions of this court certainly settles this as the rule of practice within this State. In some of the States a different rule has obtained, for instance, Missouri, Tennessee, Nebraska, Nevada, and, perhaps, Minnesota. And other States, to wit, Vermont, Maryland, New Jersey, Kansas, Iowa, and, recently, Illinois, have statutory provisions making the communication of fire by the running of trains on railroads prima facie evidence of negligence. They also have similar statutes in Maine, Massachusetts and New Hampshire; but in the States of Connecticut, Indiana, New York, California, North Carolina and Delaware, the foregoing rule obtains. See 1 Thompson on Negligence, p. 152, sec. 8 of note.

This is the

The Supreme Court of Wisconsin, in the case of Murphy v. The Chicago and Northwestern R. R. Co., 45 Wis. 222, in deciding a case of this class, used the following language: "We do intend to hold, and do hold, that the doctrine of contributory negligence on the part of the plaintiff, is applicable to the case at bar, as well as to all other cases where a recovery is sought to be had on the ground of the negligent acts of the defendant. rule which we think is well established by the authorities, and accords with justice and common sense. We see no reason why a man who recklessly and unnecessarily exposes his property to destruction by fire in the immediate vicinity of a railroad, which from the necessity of the case must use the dangerous element in carrying on its business, should as a general rule be protected, if by the use of ordinary care he could have avoided its destruction, any more than the man who recklessly and unnecessarily places his property upon the track, and it is thereby destroyed."

We deem it unnecessary to further quote authorities in support of the rule, that the doctrine of contributory negligence applies to this class of injuries as well as personal injuries.

Appellee's counsel have objected to the consideration of this question for the alleged reason that the fifth specification of errors assigned was not signed by appellant's counsel. While it is true that this specification is written below and after the names of appellant's counsel were signed, yet it is indicated by a star to come in and stand above the signatures of the counsel, as an amendment to the original specifications; we think it is properly in the record to be considered. And we think the court erred in overruling the demurrers to the several paragraphs of the complaint. The paragraph numbered 16, and all others like it, are clearly bad. As the judgment must be reversed for this reason, we decline examining the motion for a new trial, as the reasons therefor may not arise in a subsequent trial.

Per CURIAM.-It is therefore ordered, upon the foregoing opinion, that the judgment be, and the same is hereby, in all things reversed, at appellee's costs; and that the cause be remanded to the court below, with instructions to sustain the demurrers to the complaint, and for further proceedings in accordance with this opinion See note, p. 534.

PITTSBURGH, CINCINNATI AND ST. LOUIS R. R. Co.

v.

NOEL.

(77 Indiana Reports, 110. December, 1881.)

In an action against a railroad company for damages sustained by the burning of a rick of wood piled along its track, alleged to have been set on fire by the locomotive of a passing train, the complaint not having been demurred to, the following charge of negligence is sufficient after verdict: "The defendant's locomotive emitted sparks which communicated with said wood and destroyed it, . . . through the carelessness of the defendant and her agents and employés, without the fault of the plaintiff."

The title to wood delivered on the line of a railroad, in pursuance of a contract which required a measurement before acceptance, did not pass before the measurement was made, though unreasonably delayed.

In such case, the piling of the wood by the plaintiff, with the consent of the defendant, along the line of the railroad where it was more liable to and did take fire, did not constitute contributory negligence on the part of the plaintiff.

In such action, it is not error to instruct that negligence is a question of fact to be determined by the jury according to the circumstances of the case. Nor that, in that connection, the jury might consider whether the defendant's employés were negligent in reporting the imperfect condition of screens on the smoke-stacks of the locomotives. Nor that, if the season when the fire occurred was unusually dry, the defendant was bound to take extra precautions against fire. WORDEN and Howк, JJ., dissent.

An obscure and loosely-worded instruction may be cured by a clear and distinct one, and by an answer to an interrogatory.

If instructions on particular or additional points are desired, they must be requested.

Unless the contrary is shown, it will be presumed that such other instructions, beside those in the record, as were necessary to enable the jury to understand the case, were given.

The plaintiff must allege and prove a case without fault on his part; but, as the averment is negative and there is no presumption of such fault, in the absence of anything to show or suggest it, he may recover on proof of the defendant's negligence, without affirmative proof of his own freedom from fault.

It was not error to refuse to submit to the jury interrogatories which, answered either way, could not by themselves nor with others, have affected

the result.

It was not necessary that the proof should show from which engine the fire escaped.

It was competent in the case to show the manner in which the defendant's engines emitted fire shortly after the time of the fire in question.

There was no error in excluding answers to questions to a witness when it was not stated what it was expected to elicit.

Entries in defendant's books, though made at the time of the transaction, are not admissible in evidence for it.

It is largely in the discretion of the court whether evidence shall be admitted out of the strict order of practice.

FROM the Cass Circuit Court.

N. O. Ross, for appellant.

D. P. Baldwin, M. Winfield and D. Turpie, for appellee.

WOODS, J.-It is claimed that the circuit court erred (1) in refusing to arrest the judgment; (2) in refusing to render judgment for the defendant for the costs, on the special findings of the jury; (3) in refusing the appellant a new trial.

First, then, as to the motion in arrest of judgment. The second paragraph of the complaint, which alone remains in the record, is substantially as follows: That on or about the 1st day of February, 1871, the plaintiff hauled to the track of the defendant three hundred cords of wood, which the defendant had agreed with plaintiff, if plaintiff would so deliver the same, to measure without unreasonable delay, and, when measured, to pay him therefor two dollars and twenty-five cents per cord; that, in compliance with the agreement, the plaintiff delivered the wood on the track of the defendant, at the place indicated and shown him by the defendant, and notified the defendant of such delivery; that the defendant, after being so notified, refused and neglected to measure it, and while it was there the defendant's locomotive emitted sparks which communicated with said wood and destroyed it; that the wood was destroyed by and through the carelessness of the defendant and her agents and employés, and without the fault of the plaintiff; that the wood so destroyed was worth five hundred dollars, and the plaintiff damaged in that sum, for which judgment is demanded, with other proper relief.

Question is made whether this is a complaint in tort or in contract, the appellant insisting that it is good in neither view; while the appellee argues that it may be good in either or both aspects, but claims it to be in fact a complaint sounding in tort. Clearly it cannot be good in both respects; for if good as for a breach of contract, it must be upon the theory that the title of the wood had passed to the defendant. That being so, the averments, to the effect that the wood was burned and destroyed by reason of the defendant's negligence, show no tort or wrong toward the plaintiff. But, under the facts averred, we do not think the wood had passed into the ownership of the defendant. There was still a measure