139 A. 127 | Pa. | 1927
Argued May 11, 1927.
We have heretofore reviewed this litigation (Sollenberger v. Penna. R. R.,
As on the first trial, the vital question at issue was whether the fire which destroyed plaintiffs' property was caused by sparks negligently emitted from defendant's locomotive or whether it originated in the engine room of the mill where a gasoline engine was in operation.
The case for plaintiffs is stronger now than it was on its previous presentation in several respects, notably, by the testimony of a witness who saw the fire on the roof of the planing mill a few minutes after the passing of the locomotive which is alleged to have caused it, at a point to the south of the engine room, to which in all likelihood it could not have spread from the engine room as so doing would be against the wind which was blowing quite strongly at the time. We are of one mind that on the testimony submitted the case was for the jury and cannot be disposed of as a matter of law, as appellant contends it should be.
It is urged that the court erred in the admission of the testimony of certain witnesses. We think none of this testimony was vital to the recovery and are convinced that it did not bring about the verdict in plaintiffs' favor. The first complaint is of the evidence of a witness who discovered fire burning in a field on a day which he could not exactly fix but within seven days prior to the fire in question; it was discovered shortly after the engine, which by other testimony had been individuated as the one passing plaintiffs' property just prior to the fire, went by the field. This witness testified that no other train passed which could have started *418 the fire except the one in controversy. We think this testimony could not have been properly excluded. Two other witnesses said that they saw the locomotive in question emitting sparks when it was running up grade and it is argued that this was under conditions differing from those at plaintiffs' property. We do not see how the receipt of this testimony can be complained of, as the jury necessarily must have understood that there would be a difference in conditions when a train was on an up grade from those where it was running substantially on the level. The plaintiffs could not be confined in their proofs to the performance of the engine in the matter of emitting sparks in its operation on grades precisely similar to those along their property. Another witness testified to the throwing of sparks by the engine in question, three witnesses to the falling of cinders on a tin roof as the train passed and a fifth to sparks emitted from the engine without an allegation that they were of unusual size. It is complained as to two of these that it was not shown by them that the sparks were not of the size which would have been emitted from a locomotive in good condition, and as to the other three that the size of the cinders was not shown or that they were burning or capable of starting a fire. The deficiency of the testimony of all of these witnesses, if there was a deficiency in it, was supplied by other proofs going to show that sparks from the engine in question would not have been emitted by it if in good condition and that they were sufficient to and did start fires. As to the evidence given by the witness Solomon Kauffman about which appellant complains, as we understand the record, all material parts of this testimony were stricken out. No exception was taken at the trial to anything that he said. In none of the rulings on the testimony of these witnesses was reversible error committed.
This was a hard fought trial. The contentions of the two sides and the legal propositions which grew out of *419
them were presented by the able judge who specially presided over it in a manner so admirable and so fair that there is no criticism of his charge. He scrupulously observed the rulings made in our former decision and the principles laid down in prior cases, particularly in the case of Kalbach v. Phila.
Reading Ry.,
The judgment is affirmed.