28 Del. 291 | Del. Super. Ct. | 1914
charging the jury:
Gentlemen of the jury:—By agreement of counsel representing the respective parties you have been impanelled to hear and determine two actions. -Therefore you are called upon to return two separate and distinct verdicts, one in each case.
The first action was brought by Mary E. Cecil, William H. Klair, David S. Klair, George W. Klair and Hannah A. Jackson, plaintiffs, against Patrick J. Mundy, the defendant, to recover damages for the destruction of a dwelling house, barn, coach-house, milldiouse, and sheds of the said plaintiffs, by fire on the eleventh day of November, A. D. 1911, alleged to have been occasioned by the defendant’s negligence in running and operating a steam roller, at the time of the fire, being used as a traction engine.
The second action was brought by David S. Klair, plaintiff,
The buildings and personal property destroyed were located on a farm adjacent to the public road over which the traction, engine was being operated at, or about, the time of the fire.
The various acts of negligence charged against the defendant are set forth at length in numerous counts in the declaration filed and we think it unnecessary to enumerate them. We will, however, state to you that the plaintiffs in substance claim that the defendant on the day in question, owned and operated a steam roller as a traction engine upon and along a public highway, in this county, in such an unskillful and negligent manner that sparks or particles of burning fuel were emitted from the smoke stack of the engine, and by them fire was communicated to and destroyed the personal property and buildings of the plaintiffs.
The plaintiffs also claim that the fire was caused by defendant’s alleged failure to equip the traction engine with appliances to prevent sparks or particles of burning fuel from escaping from the smoke stack, also by reason of the defendant’s failure to provide a spark catcher as' provided by law.
The defendant in addition to his general denial of negligence, denies that the buildings and personal property of the plaintiffs were set fire to and destroyed by any act of negligence on his part, and claims that a reasonable inference from the evidence in the case, is, that the fire was caused by some workmen who were, a very short time before the fire, eating their dinners and smoking ' cigarettes, cigars and pipes near a fodder bin which first caught and communicated the fire to the barn and other buildings.
“No owner of a traction engine shall use or operate such engine or suffer or permit the same to be used or operated unless there has been securely attached to the smoke stack thereof a suitable and sufficient spark catcher or spark protector, which spark catcher or spark protector shall be of a conical or funnel shape and of a heavy wire material and of a mesh not larger than one-eighth of an inch,” etc.
That the steam roller used at the time as a traction engine does not come within the provisions of this statute is not contended by the defendant, and if you should believe from the: evidence that the defendant permitted the traction engine, or steam roller, in question, to be used and operated without having-attached to the smoke stack thereof a spark catcher, or spark protector, of such character as to comply with the statute of the State of Delaware, while such conduct on the part of the defendant would amount to negligence per se, nevertheless, before you? can find for the plaintiffs by reason of such negligence, you must be satisfied from the evidence that the loss and damage sustained by the plaintiffs, if any, was proximately caused by the defendant’s conduct in so permitting the traction engine or steam roller to be used and operated without such spark protector.
■ If, however, you believe from the evidence that the defend-rant was guilty of such negligence and it was the proximate cause of the fire, your verdict should be for the plaintiffs.
The first thing for the jury to consider when you retire to your room is what was the cause of the fire. If after considering all the evidence in the case you should find that the plaintiffs’ damages were caused by any act of negligence on the part of the defendant as alleged in the declaration, your verdict should be in favor of the plaintiffs. But if you should find that the fire was caused in any other way, it is not necessary for you to further consider the matter, for under such a finding of facts your verdicts should be for the defendant.
The jury disagreed.
Counsel for plaintiffs made application for retrial at the