17 F. Cas. 1070 | U.S. Circuit Court for the District of Eastern Virginia | 1882
1 have little to remark on the evidence. I- must express a doubt whether the statement of McCannahan is not an afterthought, not .only as to the sparks themselves, but as to the “swingeing” they are alleged to have inflicted on 1ns horses; and it is also rather.difficult to think that Midkiff does not exaggerate a little when he testifies to seeing sparks three .hundred yards off which Henry Johnson could not see as near as ten yards;: although he claims to be exceptionally far-sighted. A doubt occurs, also, whether the shower of spqrks not seen at all by some witnesses, but seen so 'vividly by others to fall upon the buildings, should have ignited nothing in or near it on the outside; but should have confined their operations to what could.be effected inside, by entering a veiy small aperture through a part of the space of a pane of glass, the only open spáce in that part of the building.
A doubt also arises whether. ¿ fire communicated by a single spark could in five minutes have produced the-cloud of smoke that was seen pouring out of-the eaves of the building, of which there was an alarm over the town in ten minutes. - I think the evidence is inconclusive. It is only circumstantial; and the soundest test of the validity of that sort of evidence is, that no other theory but the hypothesis on which the conclusion is based, can be formed. Ave there not many ways of accounting for a fire in a carpenter's shop attached to an engine house, full of combustible material, with a stove in it, frequented by workmen who smoke pipes or cigars and carry matches, than by supposing it was burnt by a spark from an engine forty yards off that could not have mitered the bpilding at all except through a single aperture in the window of the upper story? I do not think the evidence taken and submitted by petitioners (the defendants not appearing and waiving cross-examination) is conclusive of the fact that the shop and contents were burned by fire from a spark getting in at that broken pane of that shop window.
But I do not base my ruling in this case on the inconclusive character of the evidence. The law applicable to all such cases must govern in the decision of this. The petitioners would not be entitled to damages from the mere fact, if it were a fact, that a spark from the defendant’s engine, by entering the building, caused the fire which consumed it. It is necessary to their case that the defendants should have been guilty of negligence in the use of their engine, and for the petitioners to prove that they were. The law as to railroads is, that when a railroad company is chartered with a right to propel its trains by steam engines, then the company is liable only in case, in using its engines, it falls in the diligence which “good specialists” in this department are accustomed to exercise. As to “good specialists,” see Whart. Neg. §§ 635 and 872, and cases there cited. The emission of sparks from the engine is not negligence; unless the sparks were negligently emitted. See Vaughan v. Railroad, 3 Hurl. & N. 685; Whart. Neg. § 869.
The authorities on this point are so numerous that it would be a useless burden to cite them. The trains in this case were running lawfully over the company’s property; they were running under powers granted by the legislature to the company. Running thus, they are not responsible for fires arising from sparks proceeding from their own engines, unless it is proved that the emission of the sparks was due to negligence on the part of the defendants, either in using engines improperly equipped and furnished; or in using properly furnished engines in some negligent manner. Such negligence is not even charged in the petition. Though the burden is on the petitioners to prove it. no evidence is offered on that point. Being neither charged nor proved, there is no ease made or shown for damages. The petition must be dismissed with costs.