86 Mich. 615 | Mich. | 1891
This action was brought to recover the value of certain buildings and contents destroyed by fire, alleged to have been caused by sparks thrown from an engine running upon defendant’s road, upon which plaintiff’s farm abuts. Plaintiff had judgment, and defendant appeals.
The defendant’s testimony tended to show that the machinery, smoke-stack, and fire-box of the engine were in good order, and were of the most approved kind, the best in use; that they had been examined on the morning of that day, and were examined' the next day after the fire, by competent persons, and found to be in good •order; that the engineer and fireman were skillful and •competent, and were managing the train carefully and •skillfully; that the fireman was not poking the fire as it passed plaintiff’s premises; that it was not necessary to poke the fire, and that poking the fire would not tend to throw out sparks; that an engine in good repair, and properly managed, could not throw fire from the track'
The first question raised is that the verdict of the jury is not warranted by the evidence; that inasmuch as the testimony introduced by defendant, that the apparatus was in good order and was properly, managed, and that-the engineer and fireman were competent and skillful, was uncontradicted, those facts should have been treated as established, and a verdict directed for the defendant.
In the absence of any testimony tending to show that the fire could have happened in any other way, the jury were' justified in finding that the fire was started by a spark from the locomotive. Having concluded that the fire was caused in that manner, they were entitled to consider, as bearing upon the question of negligence, not only defendant’s testimony as to the condition of the locomotive, the competency and skillfulness of the engineer and fireman, and the proper management of the locomotive on that occasion, but also the testimony as to the poking of the fire, its effect upon the emission of sparks, and, in that connection, defendant’s testimony that it was-unnecessary to poke the fire. As bearing upon the question of the condition of the smoke-stack and fire-box and the management of the locomotive on that occasion, they were entitled to consider the testimony regarding the clover-field fire, and the testimony offered by defendant that an engine in good order, and properly managed, could not possibly throw fire from the track to plaintiff’s' buildings. The only inference that could be drawn from the testimony relating to the impossibility of the communication of fire from the locomotive to plaintiff’s buildings, in view of the circumstances of fire, was that the
Testimony cannot be said to be undisputed, when inconsistent with some other fact or circumstance, either established or regarding which testimony has been admitted. The court very properly declined to take the case from the jury, or to pass upon the conclusiveness of the testimony offered hy the defendant.
It appeared that the buildings which were destroyed had been insured, and that the insurer had paid the loss, but the court rejected testimony as to the amount paid as immaterial, and this is assigned as error. The question is ruled by Perrott v. Shearer, 17 Mich. 48, 55.
The court instructed the jury as follows:
“ 1. If you find that the fire was caused by a spark from the engine, the law raises a presumption of liability on the part of the defendant. The burden of proof is then passed upon defendant, in order to escape such liability, to show affirmatively, to your satisfaction, that the engine from which the fire originated was, at the time in question, properly constructed, and equipped w'ith the best approved appliances for preventing the escape of fire. * **************
“2. In regard to the construction of its engine and appliances to prevent the escape of fire and sparks, a railroad company is required to keep constantly in use the most approved machinery and apparatus for that purpose on its engines. *********
“3. If you are satisfied from the evidence that, at the time in question, the defendant's engine was properly constructed, and equipped with the hest-known and most approved apparatus to prevent the escape of fire therefrom, and that the same was in good repair as to its machinery, fire-box, and smoke-stack, and the engine and train was properly managed with reasonable and ordinary care and skill by the servants and employés of the railway, then the plaintiff is not entitled to recover, and your verdict should be for the defendant. * * *
“ 4. It is not negligence in a railroad company to run*620 an engine which emits sparks, providing the company has the engine equipped with means and appliances to arrest the escape of sparks, recognized as the best known and in use,, and apx>roved as such by experienced railroad operators. ***********
“ 5. If you do so find, then you will consider the question whether the defendant has satisfied you, by a fan-preponderance of the evidence, that the engine was equipped, as I have stated to you, with proper and the best-known appliances to prevent the escape of fire.”
Defendant introduced several witnesses who testified that the machinery, smoke-stack, fire-boxes, netting, and all the equipments of that engine for providing against the escape of fire and cinders, and providing against the danger of setting fires, were of the most approved order, form, and pattern known; that they were claimed to be the best in use; and that they were in use by the great majority of railroads in this country. The defendant requested the court to instruct the jury as follows:
“ 6. The engine was in good order, so far as this case is concerned, if at the time it was supplied with the best approved appliances to prevent the escape of fire, and such appliances were in good repair.”
“13. In view of the fact that it is impossible to prevent the escape of sparks from a locomotive, it is not negligence in a railway company to run an engine which emits sparks, provided the company has the engine equipped with means and appliances to arrest the escape of sparks, recognized as the best known and in use, and approved as such by experienced railroad operatives.”
“ 16. The appliances which a railroad is by law to use, to comply with its duty, are those most efficient to prevent the escape of sparks of smallest size, consistently with the successful making of steam.”
While the instructions given were in accord with the defendant's theory of its own duty in the premises as indicated by its proofs and its requests, and for this reason, if no other error appeared, we might hesitate to reverse the judgment, yet the instructions that defendant was
“Any railroad company building, owning, or operating any railroad in this State shall be liable for all loss or damage to property by fire originating from such railroad, either from engines passing over such roads, fires set by company employés by order of the officers of said road, or otherwise originating in the constructing or operating of such railroad: Provided, that such railroad company shall not be held so liable if it prove, to the satisfaction of the court or jury, that such fire originated from fire by engines whose machinery, smoke-stack, or fire-boxes were in good order and properly managed.55
This statute contemplates the communication of fire, and consequent loss and damage, notwithstanding the exercise of prudence and care in the selection of appliances and in the management and operation of trains. It fixes the standard of condition and management, but it does not attempt to establish a standard of kind or quality of appliances.
While the degree of care required of a railroad company, respecting the management and operation of its trains, must vary according to circumstances, there must of necessity be some stability in appliances, and railroad companies cannot be expected to be constantly changing appliances, or to instantly apply newly-discovered devices, nor can they be required to adopt eyery new and untried instrumentality, even though subsequent experience may demonstrate the same to be the more efficient. Indeed, the introduction of untried'devices may of itself be negligence. The efficiency of an appliance can only be demonstrated by actual experience, and adoption and use are the real tests of approval. In view of our statute, and other similar statutory provisions which make rail
In Hoyt v. Jeffers, 30 Mich. 181, 192, cited by plaintiff, the rule laid down was applied to the facts of that particular case, and was subjected to qualifications. A mill was set in the midst of a city, and the mill chimney was without any apparatus for arresting the escape of sparks; and the Court held that it became the duty of the owner of the mill to avail himself of some such
“An fact, I think the true rule is that the defendant, in adopting means to check the flow of sparks, and to avert the danger in question, under the circumstances of this case, was bound not only to adopt means calculated to avert the danger, but the means which, in the progress of science and improvement, have been shown by experience to be the best; unless,, indeed, it be some invention so recently made as not to be generally known, or y?hich the defendant, by reasonable inquiry for the best means, might not fairly be supposed to have obtained knowledge of, or unless the expense of such particular invention should be so excessive as to render its requirement practically unreasonable, when a less expensive mode of protection, substantially guarding against the danger, might be held sufficient.”
In the present case, there was no evidence offered which tended to show that there were other appliances superior in kind to those in use, or even that there were other appliances used for that. purpose, much less that there were other generally known and approved devices which were more efficient; and defendant was entitled to an instruction that it was not negligent in
Plaintiff offered testimony tending to show that the-train was running at the rate of 40 miles an hour; that the weather was very dry, and a high wind was blowing-at the time. Defendant requested the court to instruct the.jury as follows:
“4. You are to consider that the necessity of running railroad cars with regularity and uniformity is not a matter of convenience merely. The business cannot be done at all unless calculations are made upon the movements-of trains. The risks attendant upon a disturbance of that regularity are risks of human life, and not mere-business delays. It would be in the highest degree dangerous to make the movements of the cars vary with the-wind and weather.
“Those who establish themselves in the neighborhood of railroads must know that trains are expected to run with regularity, and, if there are special risks arising from no want of care in the proper equipment and management of engines and trains, those risks are not chargeable to the railroad, but are incident to the situation.”'
The court gave the last paragraph, but declined to give-the first.
Defendant’s counsel also requested the court to give-the following instruction, but the court declined:
“ The engineer and fireman, in managing the train,, are at liberty, and it is their duty, to run their train as. nearly on time as possible; and in case of a way freight whose length of stops at the stations is necessarily irregular, they are not to be considered negligent by their use of natural and reasonable means to make time.”
It must be conceded that in operating a railroad it becomes necessary, at times, to make time between given points, and the running of a freight train at the rate of
The defendant was entitled to the instructions asked for, and for this error the judgment must be reversed, and a new trial granted, with costs.