46 Wash. 635 | Wash. | 1907
This action was brought to recover damages on account of the destruction by fire of standing wheat in an open field. One Nichols was the owner of the wheat, and the field adjoins the right of way of the Northern Pacific Railway Company. The complaint alleges that the fire was • due to the negligence of the railway company. The suit was brought by the Fireman’s Fund Insurance Company against the railway company, and said Nichols was also joined as a party plaintiff. The insurance company had, prior to the fire, issued a policy of insurance to Nichols to protect him against loss by fire in the wheat. After the fire the loss was adjusted, and the insurance company paid Nichols $322.57 on account of the loss. The insurance company, claiming that it is entitled to be reimbursed by right of subrogation, then brought this suit against the railway company. At the trial any claim in favor of Nichols was dismissed. ' The complaint charged negligence of the defendant in permitting a large amount of dry, combustible material to accumulate on its right of way at the point where the right of way adjoins the premises of Nichols; also that the locomotive appliances were defective, and that sparks were, by reason thereof, permitted to escape, causing the fire. Negligence was denied. The cause was tried before a jury, and a verdict was returned, against the railway company for the exact sum which the plaintiff company paid Nichols on account of said loss.Judgment was entered in accordance with the verdict, and, the defendant’s motion for new trial having been denied, it has appealed.
Appellant first assigns error in that judgment was entered against it and that its motion for'a new trial was denied. It is argued that the evidence is insufficient to sustain the verdict. We think this contention is not well taken. The evidence showed that much dry grass, from four to five inches in height, was permitted to stand upon the right of way at the place where witnesses testified the fire started, and from which it.immediately spread into the adjoining wheat field
Error is urged upon the following, which was the concluding sentence of an instruction given by the court:
“If you do not find the defendant railway company, through its officers or agents, was the cause of that fire, then you should find for the defendants.”
It is argued that the above in effect stated to the jury that, if the railway company started the fire, it is liable, no matter what the circumstances were or what degree of care it exercised, whereas it was required by the law to exercise only reasonable care. We think no such inference could have been drawn when the instructions given the jury were considered together, as we have frequently held they must be. They were clearly instructed that the railway company was required to exercise reasonable care. That they understood such to be the standard and test of appellant’s liability we think there can be no doubt. The same comment is applicable to assignment of error No. é, which relates to another instruction. It is also argued that some of the instructions are inconsistent, but we are satisfied that, when they were read and considered as a whole, no confusion could have arisen in the minds of the jurors.
It is next contended that the court by its instructions submitted questions‘to the jury which were not within the issues. It is insisted that all questions of negligence touching any defective condition of the engine and its appliances were eliminated from the case, and that the only matter of negligence left for the consideration of the jury was that relating to the accumulation of dry and combustible material upon the right of way. The matter of negligence in the use of defec
The following instruction, which was given by the court, is criticised by appellant:
“You are instructed that it is the duty of the railway company to exercise reasonable care to keep its right of way at all points adjoining the private property of others free from combustible materials which are liable to become ignited from passing trains. And should you believe from the evidence that the grain in question was burned because of a fire which originated on the right of way of the company through sparks escaping from a passing engine, which thereafter spread to the grain field in question, then it is immaterial whether the engine of the railway company was improperly equipped or not. And it is likewise immaterial, should you find that the fire which caused the injury escaped from the right of way of the railway company under the circumstances just stated, whether the employees in charge of the engine were skillful or careful or negligent and careless in the operation of said railway engine, and your verdict should be for the plaintifF in either case, should you find that the fire escaped from the right of way of the railway company, after having been set through sparks escaping from a passing engine.”
We find no error in the quoted instruction. It is a clear and unobjectionable statement of the law applicable to the presence of combustible material upon the right of way negligently permitted to accumulate. It is in effect the same statement of the law as that contained in the following more elaborate statement of an eminent author:
“A railroad company is bound to keep its track and contiguous land clear of materials likely to be ignited from sparks
Many authorities are cited by the author in support of the above, and again, in § 2280 of the same volume, reference is made to the subject, as follows:
“It has been well reasoned that, where the railroad company negligently permitted combustible material to accumulate on its right of way, from which a fire, communicated by one of its locomotives, spread to the property of an adjoining land-owner, the question whether the fire was started through negligence in supplying the locomotive with proper appliances to prevent the spread of fire, or in keeping it in proper repair, or in operating it on the particular occasion, became immaterial. In such a case it has been held no error to exclude evidence as to what kind of a smoke-stack, fire-box, and ash-pan were in use on the defendant’s locomotives.”
Root, Mount, Crow, and Fullerton, JJ., concur.