78 N.J.L. 317 | N.J. | 1909
The opinion of the court was delivered by
This action was brought in the lifetime of Edward V. Goodman, and he having died pending suit, it was revived by order of the court, and continued in the name of his executor. .Its object is to recover damages resulting from fires that occurred upon the premises of the deceased Goodman, and which are alleged to have been communicated from locomotive engines operated by defendant company. One fire occurred on April 1st, 1905, and destroyed a quantity of manure; one occurred on July 19th, in the same year, and destroyed a dwelling-house, barns and a large amount of personal property; the third fire occurred on July 23d, and destroyed a growing crop. The first trial resulted in a verdict in favor of the plaintiff for the damages that resulted from all three fires. Upon review by the Supreme Court in banc it was held there was sufficient evidence to sustain the verdict respecting the first and third fires, but that so far as the second fire was concerned there was no evidence to support it. Goodman v. Lehigh Valley Railroad Co., 46 Vroom 277. A new trial was therefore ordered.
The second trial came on before a justice of the Supreme Court at Circuit, and by stipulation of the parties the case was submitted upon the same testimony that was taken at the first trial, with the objections made thereto by counsel
To review the judgment entered upon the verdict thus directed the plaintiff has sued out this writ of error, and assigns error upon the instructions thus given to the jury, and also to certain rulings respecting the rejection of evidence, which were duly excepted to.
The first and most important question is whether the evidence made out a case that ought to have been submitted to the jury respecting the liability of the defendant for the damages that resulted from the fire of July' 19th. The buildings and personal property that were burned wore situate upon a farm owned by the deceased that adjoined a railroad operated by the defendant company. The fire broke out about four o’clock in the afternoon in the hay-loft of a barn situate about seventy-two feet from the property of the company, and about one hundred and fifteen feet from its nearest railroad track. A fast mail or passenger train, drawn by engine Wo. 2454, had passed by upon this track a few minutes before, and a freight train, drawn by engine Wo. 1458, had passed within about forty minutes. There was evidence tending to show that a strong wind was blowing from the railroad toward the barn; that the clay was quite warm, and that the weather for some time had been unusually dry; that there was no person in or about the barn at the time the fire broke out, nor within one and a half hours prior to that time; that
The responsibility of railroad companies in the premises
Somewhat similar provisions were contained in sections 13 to 17 of the General Railroad act of 1874. Gen. Stat., pp. 2670, 2671. In Wiley v. West Jersey Railroad Co. (1882), 15 Vroom 247, 250, the Supreme Court was called upon to construe the sixteenth section, which declared “that in every action for the recovery of damages for an injury done to the property of any person or corporation by fire communicated by a locomotive engine of any person or railroad corporation in violation of the preceding sections of this act, proof that the injury was so done shall be prima facie evidence of such violation, subject, nevertheless, to be rebutted by evidence of the taking and rising all practicable means to prevent such communication of fire as by said section required.” In that case the plaintiff claimed that by evidence tending to show that the fire was communicated by an engine of the defendant company, the burden of proof was cast upon the defendant. The latter, on the other hand, denied that the law be
With this construction we agree.
In the revision of 1903 the legislature seems to have intended to render its purpose clear beyond question, for in place of the phrase “proof that the injury was so done” (upon which it had been contended that the proof must show that the injury was done in violation of the act), the revisers substituted the phrase “proof that the injury was communicated from an engine shall be prima facie evidence of such violation.”
It results that in- the case before us the plaintiff’s proofs cast upon the defendant the burden of showing that although the fire was communicated from one of the engines in question, yet the defendant had used all practicable means to prevent such communication of fire, including the provision of screens or covers in the smokestacks so as to arrest and prevent as much as practicable the escape of fire. Defendant’s evidence was addressed properly enough to the question of screens, it not being contended by the plaintiff that the fire could have been communicated from the engine otherwise than through the smokestacks.
Defendant’s evidence tended to show that both of the engines in question were fitted with spark-arresting screens having three meshes to the inch, the apertures being one-quarter inch square; that lump anthracite coal was burned in No. 2454, and that No. 1458 used a mixture of half bituminous and half small anthracite coal. Confining our
"We may assume — indeed, it is in effect conceded by counsel for plaintiff in error — that if this evidence must be fully credited, and constituted the only evidence that bore upon the care exercised by the defendant, it demonstrated that the defendant had used “all practicable means to prevent the common ¡cation of fire,” and had fulfilled its statutory duty.
But, in our judgment, the testimony introduced by the plaintiff to the effect that engine Ko. 2451 actually threw a spark that retained its vitality for a distance of more than one hundred and fifteen feet, so as to set fire to the hay in Goodman’s mow, together with the testimony of Oordes and McDonald about the throwing of sparks by the same engine on the same trip, had a legitimate tendency to prove not only that this engine started the Goodman fire, but that its screen was not in good order at the time. Moreover, one of defendant’s own witnesses — an expert — testified that in his judgment a spark that had passed through the meshes of such a screen as Ko. 2451 carried (the screen being intact) would not retain sufficient vitality or fire to ignite combustible material at a distance of one hundred and sixteen feet from the railroad track, indeed, it may easily he inferred, from what we all know, that a piece of live coal so small that it will pass through a quarter-inch mesh, and which, of course, continues to burn and thereby to consume itself while driven into the air by the exhaust steam and while carried along
It is clear enough that the evidence introduced by the defendant tending to show that it had properly maintained the screens so as to prevent the communication of fire, at the same time tended to show that in fact the fire was not communicated to plaintiff’s property from defendant’s locomotives. And for the same reason the evidence introduced on the part of the plaintiff that tended to show that the fire was communicated from the locomotives, also tended to show that the locomotive screens were not in good order at the time, and thus to contradict the evidence of defendant’s witnesses who testified that they were in good order. In short, if the testimony of plaintiff’s witnesses as to the origin of the fire was believed, and if the jury inferred therefrom (as they reasonably might infer) that the fire was caused by a spark from a locomotive engine, and also concluded that the spark could not travel so far and retain its fire unless when it left the engine it was too large to have passed through a quarter-inch mesh, it results that the jury might fairly conclude that defendant’s witnesses who testified to the effect that the engines in question were fitted with screens of quarter-inch mesh, that the screens had been inspected with proper care and were in good order and perfect condition at the time, and that there was no way in which sparks could come out of the smokestack without first passing through the screen, must have been in some way mistaken. The evidence upon the disputed points being thus in conflict, the question could be legitimately solved, only by the intervention of the jury. It is unnecessary to lay stress upon the circumstance that some or all of defendant’s witnesses w.ho spoke upon these topics were still in the company’s employ; that the screen inspectors were further interested, because if the screens were out of order they themselves were responsible; that they testified
It seems to us, therefore, that the question whether defendant was legally responsible for the fire of July 19th ought to have been submitted, to the jury.
We think there was further error in excluding the following series of questions asked of the plaintiff, Goodman, when called in rebuttal:
“Q. At the time that this fire occurred that destroyed your place, had you ever noticed any fires occasioned on yonr property from the engines of the railroad ?
“Q. Have you ever noticed the quantity of sparks thrown from the engines of the Lehigh Valley Eailroad Company at or about the time of the fire that occurred to your place during the night time?
"Q. Have you ever picked up any live coals thrown from the engines of the Lehigh Valley railroad?
“Q. How large sparks have you seen coming out of the stack of the engines at night time on the Lehigh Valley railroad about the time of the fire ?”
The third question is in form indefinite as to time, but, read in connection with the others, it no doubt was intended to relate to a time pertinent to the general inquiry. We think that the evidence that these questions would have elicited (if answered in a manner favorable to the plaintiff) would have legitimately tended to rebut the defendant’s evidence as to the inspection of the spark screens upon the locomotive engines. Eor that evidence not only tended to show inspection of the two engines in question immediately before and immediately after the fire, but also tended to show a regular system of frequent inspections of all the engines that were operated upon the railroad, and upon the faithfulness with which that system was carried out, the reliability of the evidence as to
Evidence that would have shown that sparks in great numbers and of- large size in fact came out of the engines of the company during the very period of the alleged invariable practice of frequent and careful inspection, and sparks such as to occasion other fires to property adjacent to the railroad, would have tended to show that the system, however perfect in theory, was not carefully adhered to in practice, and thus to discredit the defendant’s testimony respecting the efficiency of the inspection of the two engines under inquiry at the particular times in question.
For these reasons the judgment under review should be reversed and a venire de novo awarded. *
For affirmance — The Chief Justice, Reed, J. 2.
For reversal — The Chancellor, Garrison, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Dill, Congdon, JJ. 12.