253 Pa. 54 | Pa. | 1916
Opinion by
We have here two appeals, in cases which were tried together in the court below, were argued together here, and will be disposed of in one opinion.
The principal questions here presented for consideration, are whether there was sufficient evidence of the cause of the fire, and of the negligence of the defendant company, to justify the submission of these questions to the jury. The points are fairly raised in the first and second assignments of error, which are respectively to the refusal by the court below of binding instructions for defendant, and to the refusal of defendant’s motion for judgment n. o. v.
The subject of the liability of railroad companies for
The testimony of a number of witnesses tended to show that the fire started on the outside of plaintiffs’ fence next to the railroad; that it was very small when first seen, and, under the influence of a strong northwest wind, which blew from the direction of defendant’s tracks towards plaintiffs’ premises, the fire spread over the entire plant; in the two and a half hours preceding the fire, over thirty passenger trains, in addition to freight trains and drill engines, passed the point where the fire occurred; there was a heavy grade at that point and defendant’s locomotives during the two weeks previous to the fire and two weeks afterward, were seen to throw out sparks, many of them of larger size than could pass through a spark arrester in proper condition and repair; these sparks were hot and burned holes in clothing, set fire to combustible things on which they lighted, burned the persons of two individuals on which they fell, and caused horses in plaintiffs’ yard to run away. At times when the wind was from the direction of the railroad,
There was also evidence tending to show that the fire did not originate in any other way. The witness McCullough, superintendent of the American Ice Company, testified that when he first saw the fire the flames rose over the edge of the roof of the shed along the railroad; he could see no fire inside the plant; there was no building on fire, and the nearest fire was in the forge; the building containing the forge was not on fire; the wind was blowing from the northwest, directly from the fence to the shop; the company’s stack was more than 180 feet away from the place where the fire broke out, and the wind that day would have carried sparks from the stack in a contrary direction; smoking was not allowed in the yard. The foreman of the coal yard also testified that he was in the yard when the fire started in the fence, and he then saw nothing in the yard that was cause for the fire. Careful examination of the testimony has not disclosed anything indicating any other probable cause for the fire, upon the day upon which it occurred, than sparks from a locomotive. There was evidence that at times rubbish or waste material was burned up by means of small fires upon the premises, but it was not pretended that any such small fires were started on the premises upon the day in question. The point at which the fire which destroyed the plant, started, was definitely known and fixed. It began on the outside of a wooden fence next to the line of the railroad,.
In the third assignment of error, complaint is made of the admission in evidence of the testimony of James G. Corcoran, a detective employed by plaintiffs after the fire to investigate its cause, to the effect that on June 13, 1913, four days after the fire, at 3:12 p. m., he saw deféndant’s locomotive, No. 997, passing plaintiffs’ premises and throwing out smoke and large sparks, some of which fell in the ice plant, and that, on June 25, he saw the same locomotive in defendant’s shop at Jersey City, and saw holes which had been burned in the screen, one being as the witness said, a two inch, the other a three and a half inch hole. 01
Under' the decisions above cited, this was competent evidence. If a locomotive was seen throwing out sparks larger than would escape through a spark arrester properly constructed and in good repair, it was proper to show the cause of such emissions. If it was owing to the bad condition of the spark arrester, it might fairly be inferred that similar emissions from other locomotives were due to the same cause. A statement of the general principle applicable to such conditions is found in 33 Cyc. 1373, as follows: “Where the engine alleged to have caused the fire is not clearly or satisfactorily identified, evidence as to the general condition of other engines of defendant of the same general appearance and construction and under similar conditions, at about the same time and place, in respect to throwing sparks or coals
There is no merit in the fourth assignment, which is to a portion of the charge in which the trial judge commented on the testimony of a witness as to bonfires in the ice plant. She stated that the last one she saw was two days before the fire which destroyed the plant. The comment of the trial judge that “it would be immaterial if there were no fires in the plant on the day of the conflagration,” was a natural and obvious statement.
The fifth, sixth, eighth, ninth and tenth assignments allege error in the answers to points. The questions raised are covered by the discussion of the first and second assignments of error.
In the seventh assignment error is alleged in the affirmance of plaintiffs’ fifth point, which referred to the dropping of burning coals upon the roadbed. This was not relevant to the point at issue. It was not alleged that the fire, which destroyed plaintiffs’ plant, originated from coals dropped upon the roadbed. The charge was, that the fire was caused by sparks from the smoke stack of a passing locomotive. The point as presented had no
The eleventh assignment is to the refusal of defendant’s sixth point, which was as follows: “If the jury find from the evidence that there were causes for which the defendant was not responsible, which might just as well have produced the result complained of, and there is an absence of direct proof as to the cause of the injury, there can be no recovery for the plaintiffs, and the verdict must be for the defendant.” This point might perhaps have been properly affirmed, but under the 'evidence we cannot say that it was reversible error for the court to refuse to affirm it as presented. The rule applying to such conditions was properly stated in Wagener v. Philadelphia & Reading Ry. Co., 235 Pa. 559, in an opinion affirmed by this court, in which it was said (p. 564) : “Where the evidence points to one of several, possible explanations of an occurrence as more probable than the others under the circumstances, the jury may adopt it as supported by the preponderance of the evidence. And the most stringent test of the sufficiency of circumstantial evidence to justify a given conclusion goes no further than to require that it point to the same as the only rational explanation of the occurrence founded in the evidence.” In the present case it is by no means clear that there was any evidence of other causes of the fire than that alleged by plaintiffs, which was sufficient to be submitted to the jury. Of the other causes suggested there was no testimony indicating that the fire might have come from forges in the wagon shop. G-asoline and alcohol torches were used in the repair shop to burn paint
We see no merit in the twelfth and thirteenth assignments of error, in which complaint is made of the action of the trial judge in reading to the jury his notes of testimony, and further that he failed to state certain modifications favorable to defendant, of the evidence of plaintiffs’ witnesses brought out on cross-examination. It does not appear .that any modification of the testimony of the witnesses on cross-examination was brought to his attention. It is not claimed that the trial judge misstated the testimony in any’ way. If he did so, it was the duty of defendant’s counsel to call his attention thereto at the time. The judge said to the jury, “You have heard the testimony in detail. My notes necessarily are not as extensive as those of the official stenographer, nor are you to be bound entirely by my notes. The entire testimony is for you. I merely refresh your memory as far as I can upon the testimony.”
In the fifteenth, sixteenth and seventeenth assignments of error, objection is made to certain additional instructions to the jury on the ground that they tended to put undue pressure upon the jurors to agree upon a verdict. We cannot see in these instructions anything approaching coercion or undue pressure. The trial judge very properly reminded the jury that after the length of time which had been consumed in the trial, and the vast
The eighteenth assignment is to the refusal of the court below to grant a new trial on the ground of after-discovered evidence. This is a matter so clearly within the discretion of the court below that its action in this respect will not be reviewed in the absence of clear error: Shade v. Llewellyn, 250 Pa. 456; Mellinger v. Penna. R. R. Co., 229 Pa. 122.
The assignments of error are all overruled, and the judgment in each case is affirmed.