184 Mich. 375 | Mich. | 1915
On September 1, 1908, plaintiff insured for a term of three years the so-called Amanda M. Hicks frame residence in Alma, Mich. On February 2, 1910, a second policy was issued by plaintiff providing for $500 additional indemnity on the house and $900 on its contents. Near midday of July 11, 1911, the house was damaged by fire. Before an adjustment
While various other questions are raised by defendant’s assignments of error, that chiefly urged and argued, and manifestly calling for most serious consideration, is the denial by the court of defendant’s motion for a directed verdict in its favor on the ground that plaintiff’s testimony furnished no probative evidence that the fire in question originated from defendant’s engine, which was charged with having caused the fire, or that said engine was not in good order and properly managed; defendant’s positive evidence showing that it was.
The portion of section 6295, 2 Comp. Laws, upon which right of recovery is predicated, provides:
“Any railroad company building, owning, or operating any railroad in this State, shall be liable for all loss or 'damage to property by fire originating from such railroad, either from engines passing over such roads, fires set by company employees. * * * Provided, that such railroad company shall not be held so liable if it prove to the satisfaction of the court or jury, that such fire originated from fire by engines whose machinery, smokestack or fire boxes were in good order and properly managed. * * *”
In considering defendant’s contention that plaintiff’s circumstantial evidence bearing upon the origin of the fire goes no further than to show the fire might have been ignited by sparks from defendant’s engine, and does not amount to probative evidence that it did so originate, we find testimony in the record which, if true — and it must be so considered in passing upon such contention — warranted the court in submitting that issue to the jury. In outline it is as follows: The house was occupied as a residence by members of the
Numerous witnesses testified, and there was abundance of conflicting evidence; but, without further detail, it can be said this record clearly contains evidence tending to show: That at the time this fire caught the wind was blowing from the railroad track, and from the locality where this engine was working, towards the house. That there had been a season of excessively dry, hot weather, continuing that day except for a slight shower in the early morning, followed by wind and some sunshine for several hours before the fire, which was first discovered after 11 o’clock. Defendant’s flagman, Shaw, testified:
_ “It was a nice day, and the sun was shining at the time of the fire. It had been shining before 11 o’clock.”
That there were no other buildings near to the Hicks house, which was in a residential neighborhood with no factories in the vicinity. There were no fires inside the house, and but one person within at the time, Dr. Keene, who was disturbed in his work by black smoke coming from the switching engine to such an extent that he found it necessary to close his windows. That all the witnesses but Shaw, who located it in the cornice, testified that the fire was first seen on the outside of the upper part of the house on a part of the roof towards the railroad track and but a few inches from the gutter. That parties, going to the attic could find no fire or smoke on the inside. That this locomotive was switching back and forth past the house on the windward side laboring and emitting volumes of smoke but a short time before the fire was discovered — showing proximity of time and place.
Regardless of how persuasive defendant’s evidence may be to the contrary, with such testimony in the case there was sufficient to go to the jury upon the
There being evidence to support the finding of the jury that the fire was started by sparks from defendant’s locomotive, and the jury having so found, to escape liability it became incumbent upon defendant to assume the burden and show that its engine was in good order, properly equipped and managed.
Upon that phase of the case defendant contends a verdict should have been directed in its favor for the reason that all competent evidence bearing upon that subject was uncontroverted and conclusively established full compliance by defendant with the exculpatory provisions of the statute under which plaintiff seeks to recover.
The trial court did not leave to the jury the question of negligent or improper operation of the engine, saying among other things:
“As applied to this case, there is no evidence of improper management. Consequently, I use the term properly equipped, and, as applied to this engine, you will take up that question. * * * Take up the question of whether or not this engine was properly equipped within the statute that I have read to you here. If the defendant railroad company have shown to you, to your satisfaction, by a preponderance of the evidence, that it was so equipped, then that is the end of the case, even though you find that the engine set the fire in question. They are liable only when it is not properly equipped.”
This was referred to more than once and emphasized in different parts of the charge. Passing from instructing the jury as to the first question for them
_ “If you get to the second question, the second question is: Was this engine properly equipped? If it was, and the railroad company has shown to your satisfaction by a preponderance of the evidence that it was, then that is the end of the case, regardless of how the fire was set. If it was not and you have previously found that the fire was set by the engine, then you determine what the damages are.”
In interpreting the proviso of the statute as applied to the question at hand, this court said, in Dolph v. Railway Co., 149 Mich. 278 (112 N. W. 981):
“The statute shifts the presumption of non-negligence to the presumption of negligence. See Fisk v. Railroad Co., 114 Mich. 248 (72 N. W. 205). We there said: ‘The statute does not change the common-law liability for setting fires. It simply shifts the burden of proof upon the defendant to show that such fires were not negligently set.’ ”
The Dolph Case contains a somewhat exhaustive discussion of this question,, as a result of which the conclusion is reached, in substance, that if defendant establishes by reputable and uncontroverted evidence the fact that its engine was in good condition, equipped as required by the statute and according to good railroading, no question of fact arises for the jury, and a verdict should be directed for defendant by the court. Having occasion later to construe what was there said, considered in its entirety, this court, in Clark v. Railway Co., supra, stated the rule to be as follows:
“If upon the whole case there is room for inference, based upon evidence, that equipment was defective or that management was improper, the case is for the jury. Whether, in any case, the fact of setting a fire would be any evidence of infirmity of apparatus or of improper management, must depend upon other facts and circumstances in evidence.”
“There is no testimony that an engine in good repair, equipped as this engine was, will throw sparks 30 or 35 feet and set a fire.”
In the case at bar the defendant introduced testimony to the effect that the engine in question was properly equipped and in good condition according to approved standards of railroading. This calls for a determination as to the conclusiveness of such testimony and whether, based upon all the evidence, there is room for an inference that the equipment was, in the particular specified in the statute,, defective.
As bearing upon the condition of the “machinery, smokestack, or fire box” of the engine, defendant produced four witnesses: Jennings, assistant master mechanic of the Michigan Central Railway; Reifsnider, engineer on engine No. 100 at the time of the fire; Rathburn, the boiler maker in defendant’s shops; and Hobbs, its general foreman and formerly its boiler maker foreman. Jennings as an expert described and explained from a diagram the standard fronts of locomotives, and their variations, with reference to appliances designed to prevent throwing sparks, etc., stating at the conclusion of his direct examination that a smoke box could not be devised “that absolutely. prevents throwing cinders through the ■stack.” Rathburn, with two and a half years’ experience inspecting front ends and ashpans, testified to inspecting engine 100 at 8 or 9 o’clock on the evening following this fire; was told that there had been a fire at Alma and to inspect 100 thoroughly; that he put a little piece of oily waste behind the baffle-plate and another down the stack to examine the netting;
“Rathburn told me yesterday in this courthouse, in the presence of Mr. Shaw and Mr. C. A. Hicks, that he was asked to make an examination of the screen of this locomotive after the fire. He stated that there were patches upon it and that the screen was somewhat burned.”
He also denied knowing a man named Charles Powers, but stated he would neither admit nor deny that 11 months later than the fire he had made a statement on the subject at the instance of Charles Powers, who then reduced it to writing. Shown the signature to such alleged statement, he declined to admit that it was his writing. Powers testified on rebuttal that he interviewed Rathburn as indicated in the questions put to him upon cross-examination and wrote down what he then said and read it over to him; that he then signed said statement, after having also himself read it. This writing, previously shown to Rathburn as described and identified by Powers, was put in evidence and contained, amongst others, the following statements:
“In regard to inspecting engine No. 100, I was working at the A. A. roundhouse during the month of July, 1911. I was night boiler maker. * * * The engineer left an order to fix the spark arrester; that it was throwing sparks bad. * * * I do not know the exact date. Anyhow, at that time, I put a strip of netting around the spark arrester where I
J. V. Reifsnider, engineer of No. 100 on July 11, 1911, testified as to the condition of the engine on direct examination:
“I opened the front end of engine 100 * * * probably 30 or 40 minutes after the fire. * * * I examined the netting, and the netting was perfect on all sides; bolted well all around and the trapdoor was O. K.”
This can scarcely be said to cover the ground specified in the statute and was modified as follows on cross-examination:
“I did not examine the baffle-plates. It was too hot. I know nothing about the plates in the back of the front end. I did not examine the plate around the exhaust pipe. I could see that there were cinders lying on top of it, but these gases were so strong that I could not get my head far enough in to tell through the netting. It was so dark back in there and the small amount of smoke coming out. * * * I have not seen any engines properly equipped throw sparks. I have seen engines throw sparks, and in my opinion they were improperly equipped.”
This witness on cross-examination also expressed the opinion that such an engine as 100 properly equipped would not emit sparks of sufficient vitality to set a fire. Reifsnider was the only one of the train crew called as a witness.
Hobbs, defendant’s general foreman who had been its boiler maker and boiler inspector, testified that he was familiar with engine No. 100 and had known it
“The spark netting sometimes gets warped, and, if not properly fastened, will warp away from the door that goes into the smokestack. The wires in the netting wear out from the action of the cinders in the course of time, and not infrequently they wear out when the engine is on the road.”
It can be contended with reason that the testimony of these witnesses, taken as a whole find given full credit, falls short of conclusively showing that this engine, at least 13 years old, was, at the time of the fire, -in all parts and particulars specified in the statute, properly equipped and in good order.
Plaintiff called in rebuttal a locomotive engineer named Westcott, who, qualifying to testify on the subject, stated:
“I ran and fired about 13 years out of Durand and Bay City and also fired in Saginaw yhrds. On account of the lumber yards, sawdust, mills, etc., at Saginaw yards, I gave particular attention to the spark question.”
The substance of his testimony, based on observation and experience, was, so far as it had any probative force, that an engine properly equipped as this was said to be, and in good order, would not throw sparks with sufficient vitality to set a fire at the distance shown in this case. This was qualified by the
“A fair interpretation of their testimony is that, although some of the questions seem to call for scientific conclusions, the answers were, for the most part, really based upon their observation and experience as to the distance live or burning sparks would be carried if the engine was in proper order. We are satisfied that the testimony of these locomotive engineers raised a question of fact for the jury, and that the court did not err in refusing to direct a verdict.”
Defendant’s assignment of error on refusal of the court to receive in evidence its exhibits 6 and 7, being reports of inspection of engine 100 made by Eathburn immediately before and after the date of the fire, would be well taken if those exhibits had been again offered in accordance with suggestion of the court and squarely rejected. Worden Lumber & Shingle Co. v. Railway Co., 168 Mich. 74 (133 N. W. 949). We do not, however, think that the objection can fairly be urged or considered here. The record discloses that during the examination of Hobbs, the first witness called as to the condition of the engine, he was shown these exhibits and identified them as regular inspec
“I think you will have to pass it. I have some doubt about their being competent. You may present it to me later.”
To which counsel replied, “An exception.”
When Rathburn was subsequently called as a witness, he was shown and identified these, reports as made by him, and had the benefit of them to refresh his recollection if so desired; but they were not again offered in evidence, nor the matter again called to the attention of the court and presented “later” for a final ruling, as the court had* suggested to counsel when expressing doubts and deferring the question for further consideration at the time it first arose. Manifestly, the court desired to give it further consideration, and, with but tentative expression of opinion, made it clear that the question was left open by an invitation to call for a final ruling if desired. No objection had been made by opposing counsel, and in the light of existing authorities it is but reasonable to presume that had these exhibits been again offered, after being fully identified by the witness who made them, a favorable ruling would have resulted. If counsel desired to put these exhibits in evidence or to save an exception on their rejection, we think in fairness to the court they should have been presented later, and, under the circumstances disclosed, no error can fairly be predicated on such tentative action of the court.
The court is not required to deal in this inquiry with the significance or" force of defendant’s testimony, so long as it is not conclusive and an issue of fact is raised. We are constrained to conclude from this rec
The judgment is affirmed.
