116 Me. 231 | Me. | 1917
These two actions on the case, based on Sec. 73, Chap. 52, of the R. S., for burning buildings and personal property of Mrs. Libby, and personal property of her husband were tried together and the jury returned verdicts for the plaintiffs. On a general motion and exception to the admission of evidence they are before the Law Court.
The plaintiffs lived on a farm in the town of Clinton, on the westerly side of the highway leading from Clinton to Burnham, and easterly
On the night of the fire, May 28, 1915, Mr. Libby closed the barn and other buildings between 7.30 and 8.00 o’clock. Back of the buildings there was a grade in the defendant’s track, of forty-five feet to the mile. Four freight trains passed over the grade during the evening, one at about 9.55, one west bound at about 10.34, one east bound at about 10.55, and one east bound at about 1.20. The driver of the 10.55 train noticed no fire, but the driver of the next train, when about one mile from the buildings saw flames half on the side and hah on the roof of the hog house. His warning was the first notice of the fire the family or the neighbors had.
It was fully established that freights have great difficulty in getting over this grade without extra engines, and that it is a frequent occurrence for them to throw off live sparks at this point. Mrs. Hunt, whose husband at the time was foreman of that section, testifies that about eleven o’clock she saw a freight train almost stuck on this grade, “just moving,” it was making a noise and having a hard time, working very hard, and sparks came from the smoke-stack, quite a few good sized sparks. The wind was blowing a gale from the hardest part of the grade, exactly quartering, toward the Libby buildings. It was a common occurrence for freight trains to get stuck out there and sometimes they had to back up to Burnham. There is no question from either side as to the direction of the wind, or that it was blowing hard, and the crew do not deny that the engine was throwing off five sparks.
Circumstances indicate that this engine set the fire. No other explanation seems plausible. The defendant insists that a fire set at eleven would have made greater headway than this did. The
The engines that passed the buildings previous to the fire were equipped with the Mudge Slater Spark Arrester, which the defendants contend makes it impossible for the engines to throw off dangerous sparks. Evidence of a test was given to prove this theory, but during that test there was little, if any wind. Were all of the other conditions the same as on the night of the fire? A coal burning engine must have draft to steam and the harder it works the more draft it must have, for lessening the draft lessens the power. The driver and fireman of this engine do not deny it was throwing off sparks on the grade. Why could it not throw off any spark that a powerful locomotive could during a high wind force through the screen in the spark arrester? The mesh in this screen is three-sixteenths of an inch long by three-fourths of an inch wide, seemingly large enough to emit dangerous sparks.
Several witnesses testified to other fires set about this time in this vicinity by engines of the defendant. Mr. Libby saw no fire when making his rounds in the evening, and he was not smoking and had no matches. The fire apparently caught from the outside and from the appearance when discovered started near the ground. It was not noticeable from the track at eleven, but was on the passing of the next train. In view of the testimony of Mrs. Hunt, and the other witnesses, who testify as to the conditions existing, and the location of the fire when discovered, and the further fact that the burlap and old comforter were destroyed, we do not feel that the jury were so far wrong in their conclusion that their verdict should be set aside.
While the modified rule is not passed upon in the following cases, nevertheless the reasoning on the general principles of the admissibility of evidence of the character objected to seems applicable where the modified rule is invoked, but as heretofore observed this rule has never been adopted in this State. Jones v. Maine Central Railroad, 106 Maine, 442, says the following: — “Where in an action to recover damages caused by a fire alleged to have been set by the defendant’s locomotive, held that the question involved was of reasonable inference from all the facts and circumstances, and that the evidence should be of such character that a reasoning mind could see the connection between cause and effect. Where the defendant having introduced expert evidence that its locomotives, equipped as they were with a wire netting over the smoke-stack, could not in the opinion, of the witnesses throw a spark beyond thirty feet from the rail, held that it was not error to permit the plaintiff in rebuttal to introduce testimony of specific instances where fires had been set by these locomotives at distances varying from 95 to 152 feet. The objection raised by the defendant that the evidence was too remote in túne and place, and that the conditions were not shown to be similar to those surrounding the fire for which this action is brought, go to weight of the testimony and not to its admissibility.”
Dunning v. Maine Central Railroad, 91 Maine, page 87. “In the trial of an action for damages by fire, alleged to have been communicated by a locomotive engine, when the question at issue is
To the same effect is Grand Trunk Railway v. Richardson, 91 U. S., 454-470.
In Texas and Pacific Railway v. Watson, 190 U. S., 287. The fire was alleged to have been caused by the negligence of the Railway Company, in the use of a defectively constructed locomotive and in the careless operation thereof. Evidence was admitted that at or about the same time of a fire, and at the time of the passing of the locomotive, which it was charged occasioned the fire, the witnesses observed other fires at various points not far removed from the fire complained of. Held, that the evidence was competent as having a tendency to establish that the destruction of the plaintiff’s property was caused by the locomotive in question, and as tending to show negligence in its construction or. operation.
Smith v. Central Vermont Railway Company, 80 Ver., 216. “Although there is not a unanimity of decisions on the question, we think it may be said from the weight of authority that this kind of evidence is admissible as tending to show such a tendency, or capacity in the class of engines passing over the fine to emit sparks as to be evidence tending to prove the possibility and a consequent probability that the fire in question was caused by one of the defendant’s engines. And we see no good reason for any difference in the tendency of such evidence, whether it relates to other engines within a reasonable length of time, before or within a reasonable time after, the occurrence of which complaint is made.” In this case the modified rule was urged before the court, but it was held that in any event it did not apply as the plaintiff could not definitely identify the engine that set the.fire.
As the defendant does not claim that any of then engines are better equipped for arresting sparks than those that passed the plaintiff’s buildings on the night of the fire, and as this one evidently could, and according to the evidence, did emit sparks, we can see no reason why the evidence should have been excluded, regardless of the modified rule contended for.
As no complaint is made about the amount of the damages we must hold that the defendant’s motion and exception must be overruled and the verdicts stand.