80 Pa. Super. 408 | Pa. Super. Ct. | 1923
Opinion by
The plaintiffs owned land which touched the right-of-way of the defendant company. On March 25, 1920, a fire burned over the right-of-way into the plaintiffs’ land and destroyed approximately 57 acres of young trees. The plaintiffs claim that the negligence of the company was the cause of the fire. Their damages in this case do not arise by reason of any faulty construction of the engine or of negligence in its operation, but because weeds, grass and other combustible material, which had been cut in previous years on the right-of-
The first assignment is directed to the action of the court in allowing a map to be offered in evidence. The objection to the map was that it was not in harmony with the description of the property in plaintiffs’ statement of claim. The matter is presented in rather a meager way so that, we have some difficulty in passing upon it. What the plaintiff, undoubtedly, desired to show was the location of his land. That the map included a larger area was not a valid objection to it, provided the recovery of the plaintiffs was limited to the land described in the statement. The defendant’s counsel objected that the map merely shows “what area there is from a line at the northern end shown to the particular witness who was the engineer.” There was evidence that the map showed the northern line, as described in the deed and as indicated by witnesses on the ground. This was relevant and we cannot see under the evidence as presented that' the introduction of the map was error.
The second objection is the ruling of court in admitting the testimony of a witness who stated that he had a sketch of the line known as the Stafford Line, furnished to him by counsel, the sketch being made from a copy of the deed. Objection to the question was made because the sketch should be produced before the witness should testify. This the court overruled. The court did not state the reason for its overruling the objection, but whether right or wrong, it did the defendant no harm for the sketch was subsequently offered to the defendant and counsel could have examined the witness to ascertain whether the sketch was a correct delineation of the property described in the deed. When
The fifth, sixth, seventh and eighth assignments of error are to the refusal of the court to instruct the jury that unless it was shown that the locomotive'was negligently maintained or operated, there could be no recovery. It was definitely held in Stephenson v. Pennsylvania Railroad Company, 20 Pa. Superior Court 157, that the negligent accumulation of combustible rubbish on the right-of-way to which fire may be communicated by sparks and from which fire may be communicated to neighboring woodlands, may be the basis of recovery for the destruction of such woodlands. In that case President Judge Rice pointed out that his conclusion was not contrary to Taylor v. Pennsylvania Schuylkill Valley Railroad Company, 174 Pa. 171, relied upon by the appellant. In the Taylor case the trial Judge “was not asked to submit the condition of the right-of-way to the jury.” Therefore, that case did not afford a precedent for the case which Judge Rice was considering. The Stephenson case was followed by Hunter v. Pennsylvania Railroad Company, 45 Pa. Superior Ct. 468. In the latter case there were grass, leaves and junk accumulated on the right-of-way and was held that “Whether the defendant was negligent in this particular and whether the injury was such a natural and probable consequence of the negligence that
The other assignments are directed to the fact whether there was sufficient evidence to submit to the jury as to the negligence of the corporation defendant. There was testimony by three witnesses that they were working about 400 feet down the track from where the fire occurred, that they were on a tipple which was elevated 50 feet above the track and from their position had an unobstructed view of the place where the fire started; that there was no fire before the train went by, that the train was working heavy and throwing a lot of black smoke and immediately after the train went by, they saw fire along the track about 17 feet from the center of the track, that there was no one near the place where, the fire started. There was evidence that the combustible material along the right-of-way had not been removed for several years; that the last year’s accumulation had not been removed and that it was combustible, something that, would ignite, that the material along the road was dry. There were dry leaves, grass and brush within a few feet of the nearest rail. It seems that under this testimony taken all together there was sufficient to base the conclusion that the fire which destroyed plaintiffs’ woods was communicated first to the rubbish along the track and then to the wood-land, and that all other probable causes were reasonably excluded and that the conclusion arrived at by the jury was not mere guess work, but such as legitimately followed from a consideration of the testimony. This is all that is'required. Knickerbocker Ice Company v. Pennsylvania Railroad Company, 253 Pa. 54, and eases there cited “The evidence may be wholly circumstantial; as, first, that it was possible for fire to reach plaintiff’s property from defendant’s engines; and, second, facts tending to show that it probably originated from that cause, and from no other.”
The assignments are overruled and the judgment is affirmed.
