First National Bank v. Lake Erie & Western Railroad
174 Ill. 36
Ill.
1898
Check Treatment
Mr. Justice Magruder

delivered the opinion of the court:

There is only one question in this case, which counsel for appellant press upon our attention, and that question is, whether or not the court below erred in refusing to allow appellant to show in rebuttal, that other fires had been set by appellee’s engines at other times in the immediate vicinity of the elevator both before and after it was destroyed. The engine or locomotive,, which was alleged to have caused the fire, was identified as the engine, which drew the freight train, passing the elevator near the noon hour of August 31, 1892. It is conceded by counsel for appellant, that the testimony was confined to one certain engine of .the appellee. In cases of this kind, it often happens, that the proof does not identify the particular engine, which caused the loss, but is confined to negligence in the operation and construction of the engines generally, which run on the road.

The rule seems to be settled by the weight of authority, that, when a fire has been caused by sparks from a particular locomotive which is identified, or by one or the other of two locomotives, “evidence of other fires, kindled by different locomotives, before and after the fire complained of, is not admissible.” (8 Am. & Eng. Ency. of Law, p. 9, note.)

The rule is thus stated by Shearman & Redfield on the Law of Negligence, (sec. 675): “When the particular engine, which caused the fire, cannot be fully identified, evidence, that sparks and burning coals were frequently dropped by engines passing on the same road upon previous occasions, is relevant and competent to show habitual negligence, and to make it probable, that the plaintiff’s injury proceeded from the same quarter. * * * j£ the engine, which emitted the fire is identified, then evidence on either side as to the condition of other engines, and of their causing fires, has been held irrelevant, but not so, if it is not fully identified.”

In Gibbons v. Wisconsin Valley Railroad Co. 58 Wis. 335, the court said: “Where there is no proof of what particular engine set the fire, and the circumstantial evidence is such that there is a strong probability, that some engine on the road did set the fire, then it may be proper to show that the engines on that road generally emitted sparks, or that some one, or more of them, did so at other times and places.”

In Henderson v. Railroad Co. 144 Pa. St. 461, it was said: “Where the injury complained of is shown to have been caused, or, in the nature of the case, could only have been caused by sparks from an engine which is known and identified, the evidence should be confined to the condition of that engine, its management, and its practical operation. Evidence tending to prove defects in other engines of the company is irrelevant, and should be excluded. * * * It may, therefore, be considered as settled, in cases of this kind, where the offending engine is not clearly or satisfactorily identified, that it is competent for the plaintiff to prove that the defendant’s locomotives generally, or many of them, at or about the time of the occurrence, threw sparks of unusual size and kindled numerous fires upon that part of their road, to sustain or strengthen the inference that the fire originated from the cause alleged.”

In Campbell v. Missouri Pacific Railway Co. 121 Mo. 340, it was said: “If the issue had been of negligence in the construction or management of the engine only, and the engine, which could only have caused the damage, had been clearly identified, evidence that other engines emitted sparks and set fires would have been inadmissible under the decisions of this court.”

Counsel for appellant refer to certain cases, which, as it is claimed, hold to the contrary of this doctrine, but we think, that, upon a careful examination of such cases, the facts therein stated will appear to be such as not to bring the cases in conflict with the rule here laid down. For instance, in Thatcher v. Railroad Co. 85 Me. 502, where it was held, that evidence was admissible to show that fires were .communicated by defendant’s locomotives at different times within a certain period in the vicinity where the plaintiff’s lumber was destroyed, it did not appear that the plaintiff, by his own testimony or that of bis witnesses, was able to identify the locomotive claimed to have set the fire. So, in Grand Trunk Railroad Co. v. Richardson, 91 U. S. 454, which, upon its face, seems to sustain the contention of appellant, it is said by Mr. Justice Stroug: “The particular engines (which caused the fire) were not identified.” The case of Grand Trunk Railroad Co. v. Richardson, supra, is commented upon in Gibbons v. Wisconsin Valley Railroad Co. supra, and its reasoning upon this subject is criticised.

In view of the rule thus announced, and, inasmuch as the evidence in the case at bar tended to identify a particular engine as the cause of the injury, there was no error in the action of the court below in refusing to admit the offered testimony.

Appellant, however, contends that the testimony should have been admitted upon the alleged ground, that it was proper evidence in rebuttal of the case made by the defendant below. The statute of this State provides: “That in all actions against any person or incorporated company for the recovery of damages on account of any injury to any property, whether real or personal, occasioned by fire communicated by any locomotive engine while upon or passing along any railroad in this State, the fact that such fire was so communicated shall be taken as full prima facie evidence to charge with negligence the corporation, or person or persons who shall, at the time of such injury by fire, be in the use and occupation of such railroad,” etc. (Rev. Stat. chap. 114, par. 78). The validity of this statute has been recognized and assumed in a number of cases decided by this court. (Chicago, Burlington and Quincy Railroad Co. v. Jones, 149 Ill. 361).

It was only necessary, in the first place, for the appellant, the plaintiff below, to establish a prima facie case of negligence against the appellee by introducing evidence, showing, or tending to show, that the fire was caused by a spark from the engine. When such prima facie case was made, the burden of proof was then cast upon the appellee to show, either that the fire was caused by some other agency, or that its engine was equipped with the necessary and most effective appliances to prevent escape of fire, and was in good repair, and was properly, carefully and skillfully handled by a competent engineer. Proof was introduced to sustain all of these defenses. The judgment of the Appellate Court, affirming the judgment of the circuit court, is conclusive upon these questions of fact, so far as we are concerned.

Of course, the testimony of the plaintiff, in a case like this, introduced for the purpose of making out a prima facie case, will ordinarily be circumstantial in its character. (Henderson v. Railroad Co. supra; Sheldon v. Hudson River Railroad Co. 14 N. Y. 218; 8 Am. & Eng. Ency. of Law, p. 7). This circumstantial evidence may consist of proof, showing that it was possible for fire to reach the plaintiff’s property from the defendant’s engine or engines, and that the fire probably originated from that cause and from no other. It is always difficult, in any case, to prove, that the fire was caused by a spark from a locomotive, by a witness, who actually saw the spark falling upon the property destroyed, and who actually saw the fire arise from such falling spark. Here, the plaintiff proved, that the elevator was alongside the railroad right of way; that the weather was hot and dry; that the elevator itself was in an inflammable condition; that a train, drawn by a locomotive emitting a large quantity of falling sparks, passed the elevator a few moments before the fire broke out; that the fire broke out upon the side of the elevator, upon which the train passed, and that the wind was in the right direction to blow the sparks to the spot where the fire first broke out. All these circumstances were sufficient to make such a prima facie case, as justified a submission to the jury of the question, whether or not the fire was caused by a spark from the engine. If, in the present case, where the engine alleged to have caused the injury was identified, testimony as to other fires occurring on the line of the road shortly before or after the fire in question was admissible at all, it was admissible as a part of appellant’s original case. To make a prima facie case, it was bound to introduce evidence, tending to show that a spark from the engine caused the fire. Evidence, that other engines had caused other fires about the same time, was merely evidence, tending to show that this fire may have been caused by a spark from the particular engine in question. Therefore, the testimony should have been introduced, if at all, as a part of plaintiff’s original case. It was, however, offered-as a part of plaintiff’s rebutting testimony. Where testimony, which might properly have been introduced as proof in chief, is offered by the. plaintiff in rebuttal, it is discretionary with the trial court whether such testimony shall be admitted or not, and the action of the court in this regard is not assignable as error. (City of Sandwich v. Dolan, 141 Ill. 430; Grand Trunk Railroad Co. v. Richardson, supra; 8 Ency. of Pl. & Pr. p. 132). Inasmuch, therefore, as the offered evidence, if competent at all, would have been, in strictness, a part of the plaintiff’s original case, its admission or exclusion upon the rebuttal was a matter of discretion, and, whether right or wrong, cannot be reviewed here. The fact, that the defendant sought to show in defense, that the fire was caused by some agency inside of the elevator, did not make the offered testimony strictly rebutting" in it's character, but it was none the less on that account a part of plaintiff’s original case, as going to show, that the fire was caused by a spark from the engine. Nor can it be said, that the testimony was admissible, merely because one of defendant’s witnesses, in stating what kind of appliance for the arresting of sparks was upon the engine in question, also stated that the same kind of appliance was on all the other engines of the road. As the engine causing the injury was identified, the question was, whether it was properly equipped or managed. It was immaterial how other engines may have been equipped or managed. And, even if it had been shown that other fires had occurred caused by other engines, such fires may have been caused by the careless management of the engines rather than the defective character of their equipment. Surely, proof tending to show, that other engines were managed improperly, could throw no light upon the question, whether the engineer, managing this particular engine, was skillful or not.

Appellant refers to the case of Illinois Central Railroad Co. v. McClelland, 42 Ill. 355, as an authority for the admission of the evidence here offered in rebuttal. But the facts in that case are essentially different from those here. In the McClelland case, there was no proof that the engine, throwing the sparks into plaintiff’s meadow, where the grass and hay had been burned, was provided with any means, by which they might have been arrested; but the defendant company introduced proof to show, that an engine, thus provided, would not throw sparks one hundred feet, it having been proven that the meadow was one hundred feet from the track. Thereupon, the plaintiff was permitted to show by three witnesses on the rebuttal, that, during the year the accident happened, they had seen engines of the company throw sparks over one hundred feet. It was held that the testimony was properly admitted. It was directly contradictory of the evidence of the defendant that a "properly equipped engine would not throw the sparks one hundred feet, and tended to prove that the particular engine, causing the fire in that case, was not equipped with a proper sparkarrester.

The judgments of the Appellate and circuit courts are affirmed.

Mr. Justice Boggs took no part, in the decision of this case.