99 Me. 195 | Me. | 1904
Lead Opinion
This is an action at common law, brought for the benefit of the Liverpool, London and Globe Insurance Company, to recover the amount of insurance paid by it to the plaintiff upon his buildings in Freeport, alleged to have been destroyed by fire communicated by sparks escaping from the locomotive engine of the defendant through its negligence in the construction, equipment, management, and operation of the same. The defendant has already paid to the plaintiff the full amount foi’ which it is liable under B,. S. 1883, c. 51, § 64, as amended by c. 79 of the laws of 1895, and insists that it is under no further liability. That statute is as follows: “When a building or other property is injured by fire communicated by a locomotive engine, the corporation using it is responsible for such injury, and it has an insurable interest in the property along the route, for which it is responsible, and may procure insurance thereon. But such corporation shall be entitled to the benefit of any insurance upon such property effected by the owner thereof
Independently of any statute and prior to the enactment of c. 9, § 5, of the laws of 1842, the owner of property had the right at common law to recover damages sustained by fire communicated from a. locomotive engine through the negligence of the railroad company using it. The act of 1842, which continued unchanged until 1895, broadened the liability of a railroad company so that it was made to embrace all cases of fire communicated from its locomotive engine. It was no longer necessary to allege and prove negligence in the use of the engine, and the statute in effect made the railroad company an insurer. If the property damaged was insured, the insurance company was entitled to subrogation. In such case, the owner might collect of either party that he saw fit. If from the insurance company first, then that fact constituted no defence for the railroad company, and any sum collected by him, in excess of what was necessary with the insurance to compensate him for bis full loss, he held in trust for the insurance company. If, on the other hand, he collected from the railroad first, he thereby diminished to the same extent his claim against the insurance company. Both were insurers, the insurance company by virtue of its voluntary contract, and the) railroad company by force of the statute which imposed the liability upon it. The liability of the railroad company was however primary and that of the insurance company secondary, not in point of time, but in point of ultimate liability. Hart et al. v. Western R. R., 13 Metcalf, 99.
In this state of the law the statute was amended by c. 79, of the laws of 1895, giving to the railroad the benefit of any insurance upon the property, and providing that the insurance should be deducted from the damages if recovered before they were assessed, or if not, that the policy should be assigned to the railroad corporation which might then maintain an action thereon with all the rights of the
The result here reached, is not in conflict with Leavitt v. C. P. Ry. Company, 90 Maine, 153. In that case it was admitted that fire was communicated without fault or negligence on the part of the defendant, thus clearly presenting a state of facts under which the railroad was chargeable, not at common law, but solely because of its statutory liability. We are aware, also that the right of subrogation was denied to the insurance company under a similar statute in Lyons v. Boston & Lowell R. R., 181 Mass. 551; but that, like Leavitt v. C. P. Ry., supra, appears tb have been an action based upon the statutory liability of the defendant and the questions here decided were not raised or considered.
This case comes before the court upon report and the defendant contends it is not liable upon the facts. The undisputed facts are that on the date in question the defendant’s locomotive engine, sending out an unusual amount of smoke and cinders, passed over its
The plaintiff must still prove that the defendant’s negligence was the cause of the fire, and there is no evidence of any negligence on the defendant’s part unless negligence in the construction, equipment or management of its locomotive engine can be inferred from the fact that the fire was communicated by sparks from it. On the question whether that fact alone is sufficient to make out a prima facie case of such negligence there appears to be an irreconcilable conflict of authority. The most respectable courts after careful consideration have arrived at directly contrary conclusions. On the one hand it has been held that no such presumption arises, because first, the defendant is carrying on a lawful business in a lawful manner, and second, that sparks and coals may escape notwithstanding all the safeguards have been adopted which modern science can suggest, and the greatest skill and care are employed in the operation of the engine. On the other hand we may well presume that the defendant is not running locomotives over its road the natural and probable effect of which would be to communicate fire to the property along its route if the locomotives were properly equipped and carefully managed, and when fire is so communicated the natural presumption is that it is due to negligence. More than that, such a presumption has its foundation in the necessities of the case. The locomotives of railroad companies by night and day rush with great velocity through the land. They are here today and tomorrow may be hundreds of miles away. They are within the control of the defendant. The method of their equipment and manner of their operation are known
Lowney v. N. B. R. R. Co., 78 Maine, 479, is not an authority to the contrary. That the case differed from the present in two all important particulars; first, there does not appear to have been'any sufficient proof that the fire was in fact communicated by the defendant’s locomotive engine, and second, the defendant introduced evidence tending to show that there was no negligence in either the equipment or operation of the locomotive. After stating that it might be doubted whether there was sufficient proof that the fire was communicated by the locomotive the court say: aThe neglience must be proved. Its relation as the efficient cause of the fire must also be proved. In this case we find no evidence of such negligence, nor of its casual relation. It is urged in the argument for the plaintiff that the dampers were probably open, or warped, or that ignited coals may have been blown out of the ash pan, or that the smoke stack might not have had proper appliances to arrest sparks. We do not find the evidence of them however. Indeed what evidence there was upon these points seems to negative the plaintiff’s suggestions.” If there was no sufficient proof that the fire was communicated by the defendant’s locomotive, the question of negligence could not arise. If there was such proof then the evidence negatived the claim of the defendant’s negligence. The question whether when the fire is in fact communicated by the locomotive and there is no evidence as to its manner of construction, equipment and operation, negligence in one of those particulars may fairly be inferred from the escape of the sparks in such quantity and manner as to cause the fire, was not before the court in that case.
The value of the property destroyed was $2800 and the defendant has paid to the plaintiff $1120.
Judgment for plaintiff for $1680 and interest from the date of writ.
Dissenting Opinion
While a steam locomotive of the defendant railroad company was in lawful operation, drawing a train of cars, sparks escaped from it setting fire to the plaintiff’s property. Despite the able reasoning of the majority opinion and the citations in support of it, I am unable to assent to the proposition that this escape of sparks, nothing further appearing, is sufficient evidence to establish negligence in the equipment or operation of the locomotive. I think there is danger in the proposition justifying me in attempting to show reasons against it.
I. Apart from authority, the proposition seems to be based on the assumption that locomotives are ordinarily so equipped and managed as not to set fire to property along the route. The argument seems to be that the setting of fires by sparks from a passing locomotive is exceptional, and therefore indicates some fault in equipment or operation. I deem the argument faulty in that it deals with the setting of fires instead of the escape of sparks; confounds the consequences, which may or may not ensue, with the act which is the subject under consideration. While the setting of fires by them may be very exceptional, the escape of sparks may nevertheless be of daily and hourly occurrence. Sparks may or may not set fires after their escape according to events and conditions entirely outside of the railroad company’s sphere of action or duty, as high winds, severe droughts, etc. Whether a given act or omission is negligent is not determined by its consequences. So whether a primary result is evidence of negligence is not determined by a secondary result. The negligence of the defendant, if any, was in the act or omission through which the sparks escaped, not in the escape itself. Hence while the setting of fires may be evidence of the escape of sparks, it is not evidence of the cause of that escape, whether from accident or negligence.
It would seem to follow that the assumption, however indisputable, that locomotives are ordinarily so equipped and operated as not to set fires does not sustain the proposition that the escape of sparks from a passing locomotive indicates fault in equipment or operation.
Is it common knowledge, and undisputed, that such appliances exist and that such modes of operation are known? I must confess my own ignorance of them. I do not understand it is claimed to be knowledge so common and undisputed; and whoever will observe the amount of cinders strewing the sides of railroad tracks and will observe the smoke stacks of locomotives running at night will find, I think, much evidence to the contrary.
II. As to authorities; it is frankly admitted in the opinion that no case in this state has gone so far. It is also frankly admitted that eminent courts hold adversely to its view, while claiming support in the decisions of many other courts. Cases are cited in such support from Illinois, Wisconsin, Texas, Missouri, Tennessee, Alabama and California. I will not stop to inquire how far these decisions have been influenced by the statutes of those states or by other circumstances, nor will I burden the reader with citations of cases the other way, for I think the proposition is in conflict with the declarations and even decisions of our own court. In Sturgis v. Robbins, 62 Maine, 289, a case of fire escaping and causing injury, the court said on page 290, “It is not to be presumed that an act lawful in itself was not done at a suitable time and in a careful and prudent manner.” In Nason v. West, 78 Maine, 253, the coiirt said on page 256, “Presumption of negligence from the fact alone that an accident happened, will not do, for if there is any presumption in such a case it is that the defendants have complied with the obligations resting upon them equally with other men.” In Pellerin v. Paper Co., 96 Maine, 388, the court on page 391 quoted the above expression from Nason v. West, and added, “No presumption of negligence arises from the
But, further, I think the court has also expressly and necessarily adjudicated upon the principle involved. Batchelder v. Heagan, 18 Maine, 32, was, like this, a case of escaping fire, where fire lawfully upon the land of the defendant, but which he was by law bound to carefully guard and manage to prevent its escape to the lands of others, did escape to land of the plaintiff and set fire there. It was stoutly contended in that case, as in this, that the escape of the fire alone, if unexplained, was evidence of the defendant’s negligence in the premises. The court squarely held that it was not. Sturgis v. Robbins, 62 Maine, 289, was a similar case. The fire set by the defendant on his own land had escaped therefrom and set fire to property of the plaintiff. The plaintiff’s counsel in effect advanced the same proposition, to wit: — that the mere escape of the fire indicated that the defendant was in fault either in the time or manner of building his fire, which he must disprove or be held liable. The court held directly the contrary.
I do not find that either of these cases has since been questioned though the escape of fire from lands and locomotives has been of frequent occui'renee. They seem to me not distinguishable in principle
III. But the majority opinion seems also to be based on the difficulty of the plaintiff in such cases as this, in finding any other sufficient evidence of the defendant’s negligence. It seems to be urged that it is so much easier for the defendant to prove that it was careful than for the plaintiff to prove that it was careless, it should be required to do so. Is not this in effect equivalent to saying that whenever the plaintiff cannot prove the defendant’s fault in a matter, the fault should be assumed and the burden be put upon the defendant to prove his innocence? How can this doctrine be limited, without obnoxious discrimination, to actions against railroad companies? Why is it not equally applicable to every case where the court thinks it easier for the defendant to prove his innocence, than for the plaintiff to prove the fault or wrong? Is it not destructive of the presumption of innocence which has hitherto protected persons accused of negligence or any other tort or crime?
I think this court has never before intimated any approval of such a doctrine as applicable to a case where fault is necessary to be shown. In the case, Dunning v. M. C. R. R. Co., 91 Maine, 87, cited in the opinion, no fault was to be proved. The company was an insurer. It was only necessary to prove the communication of fire from the locomotive.. Here it was necessary to prove that, and also the defendant’s fault in the matter. On the other hand, the court seems to have been pressed at times with the argument that when circumstances render affirmative proof of some essential element in the plaintiff’s case difficult or impossible, the court should assume it to exist unless disproved; yet the court, while sometimes recognizing the hardships, has never dispensed with the proof. McLane v. Perkins, 92 Maine, 39, and cases already cited.
