68 W. Va. 618 | W. Va. | 1911
A dwelling house belonging to Mary E. Jacobs near Duffields Station near the tracks of the Baltimore & Ohio Eailroad was destroyed by fire, and she brought an action against the Baltimore & Ohio Eailroad Company to recover damages for its destruction, claiming that the fire originated from sparks emitted from a locomotive of that company. The defendant' entered a
Two important questions arise in this case. First, Did the fire originate from sparks from a locomotive? There is a volume of evidence on both sides upon this question. We shall not detail it. I remark in this case, as I have in several cases heretofore, that in my opinion the custom of incorporating in opinions of this Court long recitals of evidence or facts rendering opinions prolix and tedious, and filling the reports at public expense with matter which constitutes no precedent, as rarely are two eases exactly alike in facts., is a bad custom. These decisions are intended to lay down propositions of law, not to recite mere evidence. A’s to the question whether the fire was caused by a locomotive, it is doubtful. The burden to prove the fact is on the plaintiff, and, as there were two stoves in the house, and possibly the fire might have started from one of them, and as the house had stood from 1887 to 1905 without injury from the many trains of the railroad company, and as the engines had first-class spark arresters, and evidence goes to show that it was highly improbable, if not impossible, for sparks to set fire to a house from those engines, it may be seriously questioned whether the plaintiff has fully sustained by evidence the burden of proof that the fire originated from a locomotive.
But let us say that the fire came from a locomotive. That does not inevitably fix liability on the railroad company. There must be negligence on its part. “As a general rule a railroad company is liable for damages resulting from fire caused by the operation of its road where it fails to use ordinary and reasonable care and precaution to prevent the setting out or spread of such fire, but if. such care has been used the company will not be liable.” 33 Cyc. 1325: “Negligence is the gist of the action, and unless negligence be shown there can be no recovery.” 3 Elliot on Bailroads, § 1221. In such eases as this the burden, contrary to the general rule, rests on the defendant to exonerate itself from the charge of negligence. When once it is established that the locomotive caused the fire the company must exonerate itself from negligence. In that late excellent work, American & English Annotated Cases, Yol. 1, p. 815, is an excellent collection of cases to sustain the proposition of law that
For these reasons we affirm the judgment of the circuit court.
Affirmed.