242 Pa. 86 | Pa. | 1913
Opinion by
Isaac Montgomery was the owner of a farm in Eden Township, Lancaster County. He died February 27, 1904. On July 1,1903, the Pennsylvania Railroad Company, under its right of eminent domain, appropriated for a roadbed for its low-grade road a strip of land extending through the said farm for a distance of about 1,500 feet and of a width of about 180 feet. The south line of the right of way passed through a tobacco shed, leaving a portion of it on the company’s right of way and the balance on Montgomery’s land. In 1905 the railroad company was engaged in constructing its new roadbed, the contractor doing the work being the John Shields Construction Company. Dinky engines were operated on temporary tracks which ran past the tobacco shed. On August 1, 1905, a fire broke out on the north
In the opinion of the court below, directing judgment to be entered for the defendant, the learned president judge said that the question of the plaintiffs’ right to judgment on the verdict was not “without difficulty.” We were at first of the same impression, but, after due consideration, have concluded that the policy covers the loss sustained, and that judgment should, therefore, be entered on the verdict.
The exemption of the appellee from liability is not, in express words, for loss by fire directly or indirectly from or occasioned by a locomotive engine or engines, and in
Instead of a fire caused directly by a locomotive engine, the fire in the present case was caused directly by sparks from a burning building one hundred feet distant and entirely disconnected from those that were burned. The proximate and direct cause of the burning of the first building was a spark from an engine, and, if that building had been insured by the appellee under a policy of insurance similar in terms to the one in suit, the owner of the building could of course, have recovered nothing in an action against the insurance company ; but if buildings hundreds of yards away, located on another farm, had been burned by a spark carried by the winds from the burning building, the owner of such burned buildings could not be denied a recovery in an action against an insurance company, if it had insured the buildings under a policy similar in terms to the one issued by the appellee to Montgomery, for the clause exempting the insurer from liability could not be reason
The case upon which the learned court below seems to have mainly relied in directing judgment for the defendant is Insurance Company v. Tweed, 74 U. S. 44. It must be admitted that what was there held sustained the learned president judge in his view as to what ought to be regarded as the proximate cause of the fire. Tweed brought suit against the insurance company on a policy of insurance against fire which covered certain bales of cotton in a building in Mobile known as the Alabama warehouse. The policy contained a proviso that the insurer should not be liable to make good any loss or damage by fire which might happen or take place “by means of any invasion, insurrection, riot, or civil commotion, or any military or usurped power, explosion, earthquake, or hurricane.” During the period covered by the policy an explosion took place in a building known as the Marshall warehouse, situated directly across the street. This explosion threw down the walls of the Alabama warehouse, scattered combustible mate
In Pennsylvania Railroad Company v. Kerr, 62 Pa. 353, reference is made to the Tweed case, not, however, by way of approval, but rather in disapproval of it. In the Kerr case a warehouse belonging to one Simpson, situated very near the track of the company’s road, was set on fire by sparks emitted from a locomotive belonging to the defendant. The burning of the warehouse communicated fire to a hotel situated thirty-nine feet distant, which, at the time, was occupied by the plaintiff. It, with its furniture, stock of liquors and provisions, was consumed, and for this the plaintiff sued and recovered in the court below, the trial judge charging that the defendant was liable by reason of the burn
Under Pennsylvania Railroad Company v. Kerr the appellants are entitled to judgment. But it is said the authority of that case has been somewhat impaired. There is an intimation to that effect in what was said by Mr. Justice Mitchell in Haverly v. Railroad Company, 135 Pa. 50; but it is to be remembered, on the other
The fire which caused the destruction of the property of the plaintiffs was not occasioned or caused by fire from a locomotive engine. It was caused by a spark or sparks from a building which had first been set on fire by a spark from an engine, and, as we are clear that it was not the intention of either insurer or insured, as gathered from the words of the exempting clause of the policy, that such a fire was to be within that clause, it must be without the clause, and the loss occasioned by it is, therefore, within the general indemnity clause of the policy. The assignment of error is sustained, the judgment is reversed and the record remitted with direction that judgment be entered for the plaintiffs on payment of the jury fee.