206 F. 395 | 6th Cir. | 1913
This action was brought by Bell, hereafter called the “plaintiff,” to recover damages for the destruction of his tobacco factory by a fire set by sparks from a passing engine of the railroad company, hereafter called the “defendant.” The plaintiff recovered a verdict and defendant brings this writ of error.
It was plaintiff’s theory that the spark, which set the fire, entered .an open second-story window of the factory facing north toward the railroad, and distant about 225 feet from the track. (This distance, and all others hereafter stated, are measured on the angle of the northwest
On the other hand, it was claimed that an engine equipped as this one was cannot throw out a spark which can have sufficient vitality to set out fire at anything like the distance here involved. Tf this was established in any clear way, it might be difficult for circumstantial
We do not overlook defendant’s testimony tending to show that fire first broke out in another part of the building, where it had several times before been set on fire by a defective furnace flue, and that the fire was burning before the train passed; but those considerations were for the jury. On the motion to direct a verdict for tlie defendant, it must be assumed that -plaintiff’s testimony is true, and he must have the benefit of every fair inference therefrom.
This leaves the question whether there was sufficient evidence of negligence. Concededly, if the spark guard was out of order because of a broken netting or some such defect which would permit large burning cinders to escape, its use in that condition would be negligence. Plaintiff seems to maintain that as defendant claimed the use of a screen in proper condition would surely prevent the escape of sparks which could live for 225 feet, and as plaintiff proved that this fire was set by a spark from this engine, thereby it would be established that the screen was defective. Defendant attacks this position as reasoning in a circle, or as an inference upon an inference, and says that since the first conclusion, viz., that the spark set the fire, is only an inference drawn from the circumstances, wc cannot base thereon the further inference that the spark guard was defective, appealing to the well-known prohibitory rule of evidence. U. S. v. Ross, 92 U. S. 281, 283, 23 L. Ed. 707. We do not need to decide whether a conclusion that the spark guard was defective would be a forbidden inference based upon an inference, or whether, under these circumstances, it would be a composite and unitary inference based upon all the’ facts and circumstances in their mutual relations to each other; and this is unnecessary because the refusal to direct a verdict may well rest upon evidence of other negligence.
There was proof fairly tending to show that this engine, in the matter of throwing sparks, was not operated with the care and prudence which the situation required. Although there was an upgrade, the engine was not pulling anything like its capacity; if it had been carrying the proper amount of steam, it would have pulled the train without effort or labor. It did in fact labor, with the wheels slipping, and was making a great noise with the exhaust from the stack; a new fire had been put in just before starting upgrade; the furnace doors were open below the grates, instead of being there closed and being open above the fire. With the doors in that condition and the exhaust turned into the stack and with the ports working rapidly, as when the wheels are slipping, a very powerful draft would be created up through the fire, which would greatly increase the normal proportion of cinders going through the spark guard and correspondingly increase the number if not the proportion of live cinders among them, and would tend to keep these alive for a longer time than with normal operation. If we
It follows that the request for an instructed, verdict was properly denied.
“The mere fact that Watson heard cinders fall on the tin roof is -no evidence that these cinders were alive or hot enough to set fire either to the tin roof or other more inflammable substance, as boards or tobacco.”
It is the settled rule that requests like this, which specify one particular bit of testimony and attempt to characterize it as evidence or as no evidence, are as apt to be misleading as to be helpful to the jury, whose duty it is to consider all the facts in their mutual relations and not in any isolated way, and that it is within the discretion .of the trial court to deny such requests. Railroad v. Ives, 144 U. S. 408, 433, 12 Sup. Ct. 679, 36 L. Ed. 485; Watson Co. v. Berberich (C. C. A. 8) 94 Fed. 329, 333, 36 C. C. A. 364.
We agree with the District Judge that the excluded evidence of a .statement, made during or just after the fire, to plaintiff’s superintendent and of his reply, was not admissible, either as an admission by plaintiff or as a part of the res gestse. We think it not necessary to state more fully the circumstances' upon this point. The ruling would not be useful elsewhere.
The judgment must be affirmed, with costs.