20 Pa. Super. 157 | Pa. Super. Ct. | 1902
Opinion by
This was an action of trespass for damages alleged to have been sustained by reason of the burning of standing timber on a tract of woodland belonging to the plaintiff, negligently fired by the locomotive engines of the defendant company. The piece of woodland lies to the south of the railroad, and between it and the railroad is a narrow strip of sprout land from fifty-eight to sixty-five feet in width owned by the defendant. The distance from the edge of this sprout land to the edge of the bluff caused by the railroad cut at that point is from ten to seventeen feet, according to the varying testimony of the witnesses. There was testimony to the effect that the growth of weeds, briars, huckleberry bushes and the like in this space, which also belonged to the defendant, had been cut and cast along the edge of the uncleared sprout land and allowed to remain, and that the accumulation had been added to by leaves blown by the winds and caught in the brush. Being asked what accumulation in amount or quantity there was along there, the witness answered: “ There was a good deal. Q. About how high would be the heap ? A. I suppose it was a foot high along there. By the Court: Q. Do you say it was pretty much continuous along the edge of the woods ? A. Yes, sir.” The sprout land bordered by this accumulation was left in its natural state, having on it sprouts and young trees of fifteen years’ growth and under, and “ the leaves that would fall and the brushwood that would die in the sprouts,” Immediately adjacent was the plaintiff’s woodland.
The court charged the jury that the plaintiff could not recover unless they found : (1) that the accumulation of rubbish as above described was fired by a passing train of the defend
The defendant’s counsel contends that binding instructions should have been given, because, first, there was not sufficient evidence to warrant a jury in finding that the fire was caused by sparks thrown from the defendant’s engines, or even that it originated on the defendant’s land; second, even if those facts were established and the conditions were as claimed by the plaintiff, no negligence, which was the proximate cause of the injury, was shown, and this should have been declared as matter of law; and, third, the negligence alleged in the plaintiff’s declaration was in the construction and management of defendant’s engines, and there was no evidence to sustain this allegation. This we believe to be a fair statement of the defendant’s position, although for our convenience we have not followed the precise order followed by counsel in his printed argument. Obviously, the questions above suggested must be considered from the standpoint of the plaintiff’s evidence. Her case depended almost altogether -upon the testimony of her tenant, which was in conflict in at least two of its essential features with the testimony of the defendant’s witnesses. As has been said in another case, “ no doubt the eyes of some witnesses are livelier than those of others, and the sense of sight may be quickened or diminished by the interest or bias of him who possesses it,” but it was not the province of the trial court, nor is it ours, to say that the testimony upon which the plaintiff
The fire occurred on Friday, April 6, 1900. The witness above referred to testified, that about nine o’clock on that morning, when being north of the railroad and about a quarter of a mile distant from the cut, he saw a fire, which he at first thought was a tie fire, on the property of the defendant, and about six or eight feet from the edge of the bluff made by this cut; that a, pretty strong wind was blowing from the northwest; that it was a clear day, the atmosphere was dry and it had not rained recently ; that the fire grew bigger and ran in the direction the wind was blowing, which was in the direction of the plaintiff’s woodland, and finally passed over the rise of ground out of his view; that on the following Monday he visited the burnt district, but that he based his testimony as to where the fire commenced upon what he saw on Friday. The following brief extract from his testimony upon cross-examination may be pertinently quoted in this connection: “I knew where it commenced before I went up, but I did not know where it went. . . . Q. You could see the ground a quarter of a mile away, the ground on which this fire was burning? A. Yes. Q. And could tell where it was burning, the exact spot? A. I could tell the exact spot by a telegraph pole there. Q. What enables you to do that? A. One telegraph pole was standing and another was lying down close by it.” The testimony of this witness as to the place where the fire originated was corroborated by the testimony of other witnesses as to the appearances of the burnt district and the direction of the wind on the day of the fire. Notwithstanding the testimony of the defendant’s witnesses to the effect that the fire originated on the plaintiff’s land and spread towards the railroad, the question was clearly for the jury. The railroad has four tracks. It is an undisputed fact that trains frequently passed the point in question. The defendant showed that six trains passed Malvern tower, which we infer is not far distant, between four minutes after, and twenty-two minutes after nine o’clock, A. m., amongst which was a passenger train passing eastward at 9.13, A. m. The plaintiff’s witness testified, that, while he did not notice the train, the time when he saw the fire springing up was about
We come then to the question whether upon the facts established by the verdict the court should have declared as matter of law that the plaintiff could not recover, It is argued that this question is not an open one in view of the decision of the Supreme Court in Taylor v. Pennsylvania Schuylkill Valley R. R. Co., 174 Pa. 171. We quote from the opinion in that case: “The learned judge told the jury that the fact that the fire originated on the right of way was not proof of negligence. It does not appear that he was asked to submit the condition of the right of way to the jury, nor was there proof of any combustible matter upon it aside from the fact that the weeds and grass cut upon it the previous autumn had remained on the ground during the winter. This would not have supported a charge of negligence without more, nor would the fact that the fire originated on the right of way.” In view of this statement of the facts upon which the court grounded its decision and the further statement, that it did not appear that the trial court was asked to submit the condition of the right of way to the jury, it is manifest that the precedent is not one which controls the decision of a case like the present. In determining whether a conclusion of law in any adjudicated case is a precedent in a subsequent one, the value of the first usually is measured by its similarity or dissimilarity to the second in its controlling facts; the conclusion to be of any value as a precedent must be taken as applicable to the facts, as assumed by the court: Yoders v. Amwell Township, 172 Pa. 447.
In some of the states of the Union, absolute liability and not merely a prima facie liability for fires set by locomotives, is created by statute. See Matthews v. St. Louis & San Francisco R. R. Co., 25 L. R. A. 161, and cases there cited. In other states, and we believe also in England, it is held that when the plaintiff shows that his property caught fire from the defendant’s engine, the burden is on the defendant to disprove negligence: Whart. on Negligence, sec. 870. The learned author says:
■ “ This is unquestionably sound law as to unchartered companies. When, however, a company is chartered, and thereby lawfully
But we do not understand them to decide that in an action for a loss by fire caused by sparks from a locomotive engine no other negligence except in the construction or management of the engine can be alleged and proved as the ground of recovery. True, when a railroad company has paid for its right of way it has paid for all inconveniences which were likely to result from the construction and use of its road; but this does not cover all sorts of damage, and presumably does not cover damages arising from negligence, for the law never anticipates this in assessing damages, and it is not to be presumed that the company has by contract purchased a general immunity for carelessness. “ They are bound to temper their care according to the circumstances of danger (Morrison v. Davis & Co., 20 Pa. 171, 177), and exert more care when the property of others is in danger than when it is not; and their evidence will be
: The remaining point to be noticed is that the negligence declared on was in the construction and management of the defendant’s engines, and as this was not proved the plaintiff could not recover under the pleadings. It is true that this was alleged, but it was also alleged that the defendant unnecessarily and negligently permitted combustible materials to be upon its railroad and did not take proper care that the plaintiff’s growing timber should not be burned and that the sparks and cinders that escaped from its engines set fire to this combustible material, whereby her woodland was burned. Possibly if the case turned solely on the allegation of negligence in the construction or management of the engine, the point would be well taken. But she alleged and proved enough without that to entitle her to recover. As was said in Thomas v. Central Railroad Co. of N. J., 194 Pa. 511, “ There was no variance which can be held substantial after verdict.”
Judgment affirmed.