140 P. 767 | Utah | 1914
This action is brought to recover damages for the destruction of plaintiff’s barn by fire alleged to have been caused by defendant’s negligence in permitting sparks of fire to escape from its locomotive operated by it on its track near by. The plaintiff had judgment. The defendant appeals.
The chief complaint made is this: The court charged the jury:
That, the defendant urges, gave the jury a wrong test or measure of duty. We think the complaint is well founded. In defense of the charge the plaintiff cites 2 Rorer on Railroads, pp. 791-795, and cases there cited; 2 Thompson’s Com’s. Neg. (2d Ed.) sections 2231, 2232; Watts v. N. C. Rd. Co., 23 Nev. 154, 44 Pac. 423, 46 Pac. 52, 726, 62 Am. St. Rep. 772; Matzgar v. C., M. & St. P. Ry. Co., 76 Iowa, 387, 41 N. W. 49, 14 Am. St. Rep. 224; C. & A. R. Rd. Co. v. Pennell, 94 Ill. 448. We think the cited authorities and cases do not support the charge. They do not, as does the charge, lay down an absolute duty to furnish “the best mechanical contrivances and inventions in known practical use,” but the dirty to use reasonable and ordinary care to equip locomotives with the most approved known practical appliances in general use. Even the deduction which counsel for the respondent themselves make from the cited cases does not support the charge. They say: “We submit that the' true rule in this respect is that the railroad companies are charged by law with the use of reasonable care and diligence in the construction of its locomotives, with the operation of its road, with the employment of agents, with caring for its right of way, etc., and, as an incident to the use of reasonable care in the operation of its road, it is charged by law with the duty to provide and equip its engines in which fire is impounded with the best' and most approved me-' chanieal appliances in known practical use for the prevention of the escape of unnecessary fire from its engines.” They thus recognize that the duty imposed is to use reasonble •care and diligence to equip locomotives “with the best and most approved mechanical appliances,” etc. Rut that is not
appliance in general use for preventing the escape of sparks of fire. 33 Cyc. 1332; 3 Elliott on Railroads (2d Ed.) section 1224; 2 Thomp. Com. Neg. (2d Ed.) section 2232.
Because of the error in the charge the judgment is reversed, and the case remanded for a new trial. Costs to the appellant.