99 P. 86 | Or. | 1909
delivered the opinion of the court.
The Atchison, T. & Santa Fe Ry. Co. v. Geiser, 68 Kan. 281 (75 Pac. 68), is well annotated in 1 Am. & Eng. Ann. Cas. 812, upon this question sustaining the opinion in that case. The theory of these latter cases is that it is a question for the jury to say whether or not the defendant has succeeded in rebutting the prima facie presumption of negligence raised by the fact of the communication of the fire by an engine of defendant. 2 Thompson, Neg., 2287; Sappington v. Missouri Pac. R. Co., 14 Mo. App. 86. If there is no other evidence tending to establish the negligence of defendant than the presumption above referred to, and the testimony of defendant’s witnesses is full and complete as to the proper construction, good equipment, and repair of the engine, and satisfactory character of the management' and operation thereof by competent employees, this is sufficient to justify the jury ill finding for the defendant; and, if it is so conclusive that an opposite finding would not be sustainable, then, of course, it becomes a matter of law for the court, and it should direct the verdict. As said by Mr. Justice Lord, in Koontz v. Oregon R. & N. Co., 20 Or. 3, 36 (23 Pac. 820, 827), when considering this identical question: “When a court is asked to declare a fact established as a matter of law, the evidence ought to so completely and irrefutably ' establish the fact as to free the mind from all doubt and hesitation.” Judge Sanborn, in Woodward v. Chicago, M. & St. P. Ry. Co., 145 Fed. 585 (75 C. C. A. 594), says: “If the proper employees of the railway company have testified to the effect that there were no defects in the locomotive, or that reasonable care had been used to avoid them, and that the engine was operated with ordinary care and' skill, and the evidence at the close of the trial is so con-
To the same effect is Karsen v. M. & St. Paul Ry. Co., 29 Minn. 12 (11 N. W. 122), and Greenfield v. Chicago & N. W. Ry. Co., 83 Iowa, 270 (49 N. W. 95). In Sappington V. Missouri Pac. R. Co., 14 Mo. App. 86, upon this subject, the court say: “The jury is not bound
In such a case it was also said in Brown v. Missouri Pac. Ry. Co., 13 Mo. App. 462, that the jury are entitled to take into consideration the physical facts of the case. Thompson, Negligence, § 2234, very severely criticises the authorities that hold to the contrary, and at section 2289 approves the language quoted above from Sappington V. Missouri Pac. Ry. Co., and Brown v. Missouri Pac. Ry. Co., as embodying the true theory:
“Which is that where there is, in any case, evidence of negligence to go to the jury and countervailing evidence is offered by the defendant, it is for the jury to say whether the inference of negligence has been rebutted. When the presumption créated by proof of the fact of the escape of fire from the locomotive, has been thus rebutted by proof of its proper construction, of its being in proper repair, of its being properly and carefully managed, the plaintiff cannot sustain his action without making other proof of negligence.”
And in the next section he says:
“The trial court might well have charged the jury in this case, and in the preceding case, that the imputation of negligence resulting from the communication of the fire from the engine of the defendant was rebutted by evidence that the engine was carefully and skillfully managed and was provided with improved spark arresters; but whether the testimony adduced by the defendant that such were the facts was to be believed was for the jury and not for the court.”
“Even though you -find that defendant’s engines caused the fire complained of, if you further find from the evidence that defendant’s engines were properly constructed, and. had the most approved appliances for arresting sparks and cinders, and were carefully operated by skillful and competent employees,' then I instruct you that this presumption is overcome, and plaintiff cannot recover without making proof of other negligence or want of ordinary care, as alleged in the complaint, and if you find that plaintiff has failed to introduce such proof, then your verdict must be for the defendant.”
We think the requested instruction embodies the law upon that feature. Where plaintiff’s case depends upon the presumption of negligence arising from the fact that the fire was ignited by defendant’s engines, and the jury finds from the evidence that the defendant actually used on these engines the most approved appliances for the purpose of preventing the escape of sparks or fire, or has exercised reasonable diligence to. obtain and use them, and they were in good repair at the time of the fire, and the engines were carefully operated by skillful and competent employees, such evidence successfully overcomes such presumption of negligence, and entitles defendant to a verdict, unless there are other circumstances proved tending to establish negligence.
“If you find from the evidence that the servants of defendant engaged in operating the train in question acted under all the attending and surrounding circumstances as reasonably prudent and careful persons, having due regard to the rights of others, would have acted under the same circumstances, then I instruct you that the defendant was not careless or negligent in operating said train or engines.”
And also the following:
“If you, therefore, find from the evidence that the defendant has actually used on the engines drawing this train the most approved appliances for the purpose of preventing sparks or fire from escaping, or has exercised reasonable care and diligence to obtain and use them, then I instruct you defendant was not negligent in said respect.”
Both instructions were refused. These, and the former one, we think, contain a fairly correct statement of the law, and should have been given, if not included, in the general instructions. Negligence on the part of the defendant is the basis of plaintiff’s right to recover in such a case. The rule in railroad fire cases that casts the burden upon defendant to show want of negligence is an exception to the rule in other cases of negligence, in which plaintiff is required to prove the negligence. .13 Am. & Eng. Enc. Law (2 ed.), 497. Arid,, when defendant establishes by preponderance of the evidence due diligence and care in these particulars, it is not liable for the damages resulting from the fire, although the fire was occasioned by its engines, and the instructions should fairly present to the jury this element of the defense; but, if fairly covered by the instructions given, it was no error to refuse the requests.
“This presumption of negligence, if you find from the evidence that the fire causing the damage was communi*122 cated from defendant’s engine, is a rebuttable presumption, and may be overcome by proof on the part of the defendant that the engine or engines alleged to have been the proximate cause was or were properly constructed and had the most approved appliances for arresting sparks and cinders, and was carefully operated in a skillful manner by competent employées. What is meant by that is that, if you find from the evidence that this fire was caused by sparks being emitted from defendant’s engine, then, as I stated to you, there is a disputable presumption raised to the effect that defendant was negligent, and this is for him to overcome by the defendant showing that the engines were properly constructed and managed.”
No. 8. “I instruct you that the defendant was not bound to use the best or most approved appliances for the purpose of preventing sparks or fire from escaping from its engines and being communicated to the property of others. It was the duty of the defendant to exercise reasonable care and diligence in. obtaining the most approved mechanical inventions and appliances to prevent the escape of fire, and putting such appliances into practicable use.”
No. 9. “I further instruct you that in actions of this character the gist of the action is negligence, which must be sustained by proof, and the defendant cannot be held accountable for unavoidable or unusual consequences of the proper operation of its engines and trains.”
These instructions given are in accord with defendant’s theory of the defense, and probably sufficiently cover the first request, supra, but do not include the second and third, as to what constituted reasonably prudent and careful conduct of defendant’s employees, such as will free the defendant from the charge of negligence in that regard; nor that the exercise of care and diligence in the particulars named relieves defendant from liability for damages resulting from the escape of fire, under such circumstances. 13 Am. & Eng. Enc. Law (2 ed.), 517c; Anderson v. Oregon R. Co., 45 Or. 211 (77 Pac. 119); St. Louis S. W. Ry. Co. of Texas v. Knight, 20 Tex. Civ. App. 477 (49 S. W. 250; St. Louis S. W. Ry. Co. of
For the errors above assigned the cause will be reversed and remanded for a new trial. Reversed.