Byers v. Baltimore & Ohio Railroad, 222 Pa. 547

Byers v. Baltimore & Ohio Railroad

222 Pa. 547 | Pa. | 1909

Opinion by

Mr. Justice Potter,

Plaintiff in this case is the owner of a farm adjoining the tracks of the defendant company. Upon this farm stood his barn, 229 feet north of the railroad track, and his house was located about the same distance from the railroad, and about 100 feet away from the barn. On January 17, 1905, in the forenoon, the barn and other outbuildings caught fire and were destroyed. A relief train of the defendant passed the location of the property a few moments before the fire was discovered. The plaintiff charged the defendant company with negligence, in that it had not provided the locomotive of the relief train with an efficient spark arrester, and that by reason of its neglect and oversight in this respect, sparks of unusual size escaped from the locomotive, and set fire to the buildings. He therefore brought this action to recover from the defendant company the damages sustained in the loss of the property. At the trial, plaintiff testified that he was sitting in his house just before the time of the fire, and saw the relief train pass by; and that he noticed the smoke blow from the railroad towards *553his buildings, and heard the sound of something dropping upon his porch. He looked out and saw a cinder, warm and smoking, roll along the porch. This cinder and two others were picked up on the porch by plaintiff after the fire, and were preserved and produced in court. A few moments after plaintiff saw the train pass and heard the sound of something dropping, the barn was seen to be on fire. One witness testified that he saw the train pass shortly before he noticed the fire on the barn roof, and that the locomotive was then throwing out sparks as large as hickory nuts. There was also testimony that a locomotive properly equipped with a spark arrester would not throw out cinders or sparks of the size described by plaintiff’s witness. Plaintiff further testified that two or three mornings after the fire, he examined the engine which had passed his place at the time of the fire, and that the wire netting comprising part of the spark arrester on the locomotive gave evidence of having been newly patched.

The trial judge refused to give binding instructions for the defendant, and submitted the question of defendant’s negligence to the jury, who found for the plaintiff. This appeal is by defendant, and the fourth, fifth and sixth assignments raise the question whether there was any evidence of negligence sufficient to be submitted to the jury. The law governing this class of cases wherein recovery is sought for a loss by fire, caused by sparks from a locomotive engine of a railroad company, has been thoroughly considered in Pennsylvania, and is well settled. A very thorough and elaborate discussion of the subject by Justice Clark is found in Henderson v. Railroad Co., 144 Pa. 461, where, upon page 479, the following statement of the rule is quoted with approval: “ It devolves upon the plaintiff to prove by a preponderance of evidence that the fire was communicated by sparks or cinders from the railway engine. It need not be shown that any particular engine was at fault, but it will be sufficient if the fire is proved to have been set by any engine passing over defendant’s railway, and the evidence may be wholly circumstantial; as, first, that it was possible for fire to reach the plaintiff’s property from the defendant’s engines; and, second, facts tending to show that it probably *554originated from that cause, and from no other.” And, as applicable to a state of facts similar to those in the case now before us,' the law was again succinctly stated in Elder Township School District v. Penna. R. R. Co., 26 Pa. Superior Ct. 112, where Henderson, J., said (p. 114): “While the burden is on the plaintiff to prove that the fire was negligently communicated by some engine of the company, the fact may be shown by circumstantial evidence. Given the passing train, the accumulated combustible material, the fire breaking out therein within a few minutes after the train had passed and communicating directly with the plaintiff’s building, there exists a state of facts from which the jury would be authorized to draw the inference of negligence on the part of the defendant.” Under these authorities and many others to the same effect, which might be cited, we have no doubt as to the sufficiency of the evidence in this case to justify its submission to the jury. There was evidence tending to prove that it was quite possible for fire to reach the plaintiff’s property from the defendant’s engine. That sparks as large as hickory nuts were seen escaping from the locomotive which passed just before the fire. That the wind blew towards the buildings. That, a few moments before the fire, the sound of something falling on the porch or porch roof was heard, and at least one cinder, hot and smoking, was seen on the porch of the house, about as far from the track as the bam. That the fire was discovered on the shingle roof of the barn on the side next to the railroad, a few moments after the train had passed. There was further testimony tending to show that the spark arrester on the engine in question when examined two or three days afterwards, showed signs of fresh repair.

If the testimony in these respects was believed by the jury, it was sufficient to justify the inference that an imperfect and inferior spark arrester was used, and that the fire resulted from this fact.

In the first assignment of error counsel for appellant questions the admissibility of plaintiff’s testimony, as to the condition of the spark arrester upon the engine, when he saw it, two or three days after the fire, and when the appearances indicated *555the recent repair of the netting. The evidence that the engine threw .out sparks of the size described was in itself enough to carry the case to the jury, upon the question of whether the spark arrester was in good condition: Phila. & Reading Ry. Co. v. Shultz, 93 Pa. 341; Penna. Co. v. Watson, 81* Pa. 293. And the further showing that a few days later the wire netting in the spark arrester exhibited signs of recent repair, taken in connection with the proof of large sparks thrown out upon the day of the fire, fairly warranted the inference that there had been an opening in the spark arrester, which was subsequently covered by the patch which the plaintiff said he saw. For that purpose the testimony was clearly admissible. “It has been held that on account of the general nature and circumstances of cases involving the liability of railroads for fires, a greater liberality in the admission of evidence is permitted, both as to the origin of the fire and the defendant’s negligence, than in other cases of damages for tortious injuries. There is no doubt that a plaintiff may show the defendant’s liability for damages by fire by circumstantial evidence merely. As defects in an engine and negligence in its management, it has been said, are matters peculiarly within the knowledge of the company, it is not reasonable to expect of a stranger direct evidence of the defects or negligence:” 13 Am. & Eng. Ency. of Law (2d ed.), 510, 511.

In the second and third assignments of error, complaint is made of the action of the trial judge in permitting the cross-examination of defendant’s witnesses with regard to three cinders which were shown them. They were asked if the smallest one of the three cinders could pass through the netting of the spark arrester if it was in good condition. The three cinders had not been admitted in evidence, for the reason that the plaintiff could not identify the particular one he had seen fall hot upon the porch. But he testified that it was one of the three,, and the inquiry was confined to the smallest one. So that no harm was done to defendant in this respect. The witness had testified that large sparks or cinders would not escape through a spark arrester in good condition. On cross-examination, counsel might then properly have shown him *556any object, whether in evidence or not, for the purpose of establishing or fixing by comparison, the size of cinders that could pass through the meshes of a properly equipped spark arrester. “ Any article made important by evidence or by the nature of the investigation may be produced for inspection. ... A witness may use his own body or that of another person or any article to illustrate the evidence:” 17 Cyl. L. & Pr. 292, 293.

The assignments of error are all overruled, and the judgment is affirmed.