14 Cal. 387 | Cal. | 1859
delivered the opinion of the Court—Cope, J. and Field, C. J. concurring.
This is an action for negligence, whereby the plaintiff lost his grain growing near the railroad track, which loss was occasioned by fire emitted from the engine of the cars of defendant. The case was tried by a jury, who found for the plaintiff. The main ground of error relied on is, that the verdict is unsustained by the proofs.
The plaintiff offered evidence tending strongly to prove, that the fire was communicated from the engine of defendant’s cars to his grain. But no specific acts of negligence were shown. There was proof to show, that this result was not probable from the ordinary working of the engine. The plaintiff now contends, that this is, itself, prima facie proof, that some remissness or negligence existed, especially as there is no proof that, from any unexpected or uncontrollable accident or event, the result happened.
The authorities are not agreed upon the question of negligence, or rather, the facts which raise the presumption of it. In Ellis v. P.&R. R. Co. (2 Iredell, 140,) is an opinion of Judge Gaston on a question like this in its general features. That eminent jurist said: “ The company are not liable for an injury like that complained of, if they use all the care to prevent it which the nature of their business allows;' but we also think, that as no evidence was offered to show what care they did use in the case under consideration, there was no foundation laid for asking the instruction. We admit, that the gravamen of the plain
Haylett v. Philadelphia & Reading Railroad Co. (23 Penn. 373,) is in point. There, it was proved, that the road passed seventy-seven feet from the dwelling-house of the plaintiff, and that the house was set on fire from sparks from engines passing at a time when the weather was very dry and windy, and the wind blowing across the road to plaintiff’s house. The defendant proved, that all their engines were in good order, and all provided with good spark-catchers. The lower Court directed a verdict for defendant, but the Supreme Court, on appeal, reversed the judgment, holding that the question of negligence, on the facts in that case, was a question for the jury.
The facts in this case should have been put to the jury, for them to determine the question of negligence, or the want of it, and wo cannot review their finding.
Judgment affirmed.