149 Mich. 400 | Mich. | 1907
Lead Opinion
(after stating the facts). 1. The fact that the fire was set, as alleged, must be proved; not, necessarily, by the testimony of an eyewitness, but by evidence which reasonably leads an inquiring and unbiased mind to the conclusion that a cinder from the particular engine caused the fire. The evidence is not sufficient if it establishes no more than that the fire might so have been set.
The evidence presented to support the inference that the fire was set, as alleged, is in substance here stated, and, where there are variations, in form most favorable to plaintiff. The defendant’s tracks run, at the place in question in the city of Charlotte, from the northeast to the southwest, and plaintiff’s premises are south and east of the tracks. On the morning of November 9, 1903, an alarm of fire was turned in at about 1:48 o’clock, by whom is not shown, and a fire was discovered by those who responded to the alarm in the southwest corner of a shed 70 feet long and from 15 to 20 feet high from ground to peak of roof, running substantially parallel with defendant’s tracks and connected with a larger and main building by a covered passage and a door. There were grass and papers and other debris along the right of way and near the shed which was about 35 feet from the track on which the train, hereinafter referred to, was running. It is not claimed, however, that the fire was set otherwise than by a cinder or spark carried in the air to or upon the shed. The wind was blowing quite strongly from the southwest — that is to say, up the right of way in a direction opposite to the one the train was moving. It was very dry, the shed was built of wood, was old and dry. The shingles were warped.
“I could not tell whether the fire was on the side of the building next to the railroad or whether it was on the top of the building. * * * The blaze was coming from the southeast (probably meaning southwest) corner of my rim shed. * * * It was apparently all on the outside of the building or near the roof or on the roof. * * * It was in the southwest corner of the shed. I first discovered the fire in the southwest corner of the rim shed.
These are statements of various witnesses for plaintiff, including the owner, her employé, and the firemen, about the position of the fire when first seen by them. About 15 or 30 minutes before the alarm of fire was given, a passenger train .went west on defendant’s road. None of plaintiff’s witnesses saw it. There is testimony to the effect that the engine was puffing very hard and seemed to be going fast; this from witnesses who were, at the time, indoors. No one on the train saw any fire in plaintiff’s shed. No evidence was introduced on the part of the plaintiff to prove the condition, equipment, or management of the locomotive. Plaintiff’s premises, the rear of which abuts upon the railroad right of way, are near the intersection of Sheldon street and Foote street, about 800 feet to the west or southwest of the railroad station.. There are a number of buildings used for residences and for other purposes in the immediate vicinity. No testimony was introduced tending to prove that the fire was set in any way other than as claimed by plaintiff. Counsel for plaintiff argue that the testimony introduced by defendant upon the subject of the integrity and management of the locomotive on the night in question furnished, some of it, support for inference that the fire originated in the manner alleged in the declaration. We need not set
2. The testimony for defendant to the effect that the locomotive was properly equipped and managed is not contradicted and is conclusive unless, as counsel for plaintiff insist, it is to be measured against an alleged presumption of improper equipment or of improper management arising upon the fact that the locomotive set the fire. This court has recently construed and applied the statute, 2 Comp. Laws, § 6295, adversely to the contention of the plaintiff here. Dolph v. Railway Co., ante, 278. If upon the whole case there is room for inference, based upon evidence, that equipment was defective or that management was improper, the case is for the jury. Whether in any case the fact of setting a fire would be any evidence of infirmity of apparatus or of improper management, must depend upon other facts and circumstances, in evidence.
In the case at bar, no peculiar conditions calling for any unusual care in managing the locomotive were present. Counsel say a conflict of evidence is made by, or room for inference of defective equipment or improper management found in, (1) the testimony of the fireman that he put in coal while passing through Charlotte, the open door of the fire box tending to increase the draft; (2) the evidence that the engine had not before or after the occasion set fires; (3) because the engineer did not inform the jury about “where were the levers,” how wide open was the throttle, how he was handling the engine, what he was doing to it, were the drivers slipping opposite the premises in question, how heavy was the train, how much steam was used; (4) the testimony of defendant’s
The train in question reached Charlotte at 1:27 a. m., leaving at 1:30; its engine, numbered 988, was assigned to the defendant by the Grand Trunk Railway Company of Canada in May, 1903, and had been thereafter used to draw passenger trains between Port Huron and Chicago; the engine had a spark arrester, made of No. 10 wire, with meshes 2£ by 2& to the square inch, which is as small as experience shows can- be used and have an engine steam properly; each engine was washed out after being run 1,000 miles, and a thorough examination made of the fire boxes, netting, smokestack, etc.; there is also a monthly inspection of all engines and the fire boxes and the dampers are examined before every trip. Engine No. 988, according to a record kept by defendant, had her first washout May 17,1903, and was then in first-class condition as to nettings, diaphragm plates, baffle plates, fire box, and smokestack. A record produced at the trial showed an inspection on November 6, 1903, which disclosed smokestack, netting and plates, ash pans and dampers in good condition. A further inspection was made November 16, 1903, at which time it was in good condition. The engineer in charge on the morning of November 9, 1903, testified that on that trip, which began at 9:00 p. m. on November 8th, at Port Huron, the engine was in good condition; that it was running no faster than 12 miles an hour as it passed .plaintiff’s premises, and that he was handling it in a careful manner. His next trip on
There is no testimony that an engine in good repair, equipped as this engine was, will not throw sparks 30 or 35 feet and set a fire. The testimony, that of the master mechanic, is:
“ Q. Do you think an engine on your road, in good repair, properly handled, would emit sparks through this device with sufficient life to set fire ?
“A. I hardly think so.
“ Q. Your opinion is, as a master mechanic, an engine on your road, equipped with this device, in good shape, would not throw sparks of sufficient vitality to cause a fire ?
“A. It is possible that they would in some instances.
‘! Q. What would you say now as to whether an engine upon your road equipped with the spark-arresting device which you have described, in good repair and properly handled, would throw live sparks and cinders a distance of 30 or 40 feet and the cinders retain enough vitality or life to set a building on fire, if dry ?
‘ ‘ Objected to as being guesswork. Ob3'ection overruled. Exception for defendant.
“A. If it would do this I wouldn’t think there would have to be anything the matter with the engine. However, if there was a hole in the screen it would have more of a tendency to emit sparks than otherwise.” •
The undisputed testimony is, too, that this locomotive had, so far as was known, never before and never since •set a fire.
The other contentions noted are disposed of by what has already been said, except, perhaps, the one that the engineer did not, in detail, state how he was managing the
3. A wagon carrying 800 feet of hose was used by the fire department and driven north on Sheldon street to Foote .street, which makes, with Sheldon, a right angle. On the corner is a hydrant. One of the firemen alighted and connected the hose to the hydrant, the wagon meantime turning west into Foote street, laying the hose behind it and crossing the tracks of defendant’s road, which were laid diagonally across the street. It seems to have been the plan to approach the fire from Foote street and the right of way of defendant. Defendant has more than one track at this point and the hose wagon passed some 15 or 20 feet beyond them before stopping. A freight train was at the moment slowly approaching this crossing from the west and it ran upon and cut the hose before water had been turned on, and before the hose could be disconnected and removed. This cutting of the hose is said to have been an act of negligence, resulting in such loss of time that it may be considered the proximate cause of plaintiff’s loss. As we have con-
“ To entitle the plaintiff to recover on this branch of the case, you should be satisfied by a preponderance of the evidence that Mr. Martin, the engineer in charge of the freight train, knew or ought to have known that the hose was across defendant’s track, and that such knowledge was brought, or should have been brought, to his attention by reasonable diligence on his part in time for him to have stopped his train before reaching the hose lying across the defendant’s track.”
Objections were made to the argument of counsel for plaintiff to the jury and they are pressed in this court. It is not likely the'same situation will be again presented, and we need make no comment.
The judgment is reversed, and a new trial granted.
Concurrence Opinion
We concur as to the third point. As to the second point we think there was a question of fact for the .jury.