191 Mich. 321 | Mich. | 1916
Plaintiffs were copartners engaged in general merchandising in the village of Perry, Shiawassee county, where they ran a store located in the so-called “Brown building,” which was destroyed, ‘with its contents, on July 6, 1913, by a fire claimed to have been originally ignited by sparks emitted from an engine of defendant. This fire, which spread to and destroyed numerous other buildings, started in the roof of an elevator building located between 30 and 40 feet south of defendant’s tracks, which ran northeasterly and southwesterly through the village. The elevator was 80 feet long east and west, parallel with the track, 24% feet wide, about 45 feet high “to the first hip,” above which the fire started in the north side of the roof “about four feet from the ridge.” Sheds, a black
Defendant’s road was double-tracked through Perry; the northerly track being for west-bound trains, and the southerly for east-bound. Shortly before the fire was discovered an extra train consisting of five baggage cars and two passenger coaches, carrying a carnival company, passed through Perry at about 1:40 p. m., standard time, east-bound on the south track* running about 35 miles an hour, drawn by engine 2297* and making no stop between Lansing and Durand.. While much testimony was introduced upon the question of whether or not the fire was started by sparks escaping from defendant’s engine No. 2297, and that issue was sharply contested in the trial court, defendant’s counsel concedes that plaintiffs’ proofs made it an issue of fact for the jury, under Jones v. Railroad Co., 59 Mich. 437 (26 N. W. 662); Hagan v. Railroad Co., 86 Mich. 615 (49 N. W. 509); Clark v. Railway Co., 149 Mich. 400 (112 N. W. 1121, 12 Am. & Eng. Ann. Cas. 559); Potter v. Railway Co., 157 Mich. 210 (121 N. W. 808, 22 L. R. A. [N. S.] 1039); Union Ice Co. v. Railway Co., 178 Mich. 346 (144 N. W. 1033); Pennsylvania Fire Ins. Co. v. Railroad Co., 184 Mich. 375 (151 N. W. 578). But it is urged defendant’s testimony showed conclusively that the engine was fully equipped with machinery, smokestack, screen, fire box, etc.,,in good order, and was properly run, operated, and managed at the time and place
The errors relied on and argued by defendant are in substance that the court should have directed a verdict in its favor, as requested, because the undisputed evidence showed that engine 2297 was in good order, properly equipped and managed at the time of the fire, in full compliance with the statute; that plaintiffs’ attorney was permitted, against objection and exception, to comment upon and argue to the jury as an evidential fact defendant’s failure to produce for inspection the screen used in said engine at the time of the fire, and to argue to the jury (as stated in ^defendant’s brief):
'“That if a screen in an engine will emit a spark that will carry vitality sufficient to ignite a building .along the right of way of the Grand Trunk Railway, then there is no security for property along the railroad in the State of Michigan or in the United States.”
The exact language of counsel as found on the page •of the record referred to in that connection is:
“If it is true that that screen will emit a spark, that ‘small screen in an engine will emit a spark that will carry vitality sufficient to ignite buildings along the railway of the Grand Trunk system, then, gentlemen of the jury, there is no security for any property along the rights of way of any railroad in the State of Michigan or in the United States.”
This was said while arguing to the jury that, if the netting or screen used to prevent the escape of sparks from the smokestack of the engine was actually whole and in good order, sparks could not escape of sufficient size and vitality to ignite the elevator roof at the distance it was from the passing engine. Continuing the
“If that is true, these little villages along their right of way would be nothing but smoldering heaps of ruins. * * * It is the only conclusion that can be reached; * * * my brother is wrong; they are wrong in their premises. I say to you again that no sparks can be emitted from that screen, if it is in proper condition, and carry with it vitality sufficient to ignite a building 50 feet away.”
We are not prepared to hold that this was illegitimate argument, if the question whether the engine was properly equipped and in good order was an issue for the jury. Defendant’s chief argument and first assignment of error are directed against the ruling of the trial court that it was, and the propriety of the argument stands or falls with that assignment, the essence of which is that defendant’s testimony showed conclusively, and without any competent controverting evidence, that all excusing provisions of the statute under which this action is brought had been fully complied with by defendant.
The provision of the statute in question, “that such railroad company shall not be held 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,” shifts the presumption of nonnegligence to that of negligence, and puts upon defendant the burden of showing affirmatively that the fire originating from its engine was not negligently set. Fisk v. Railroad Co., 114 Mich. 248 (72 N. W. 205).
To sustain this burden defendant introduced evidence that the engine claimed to have set the fire was. properly equipped and managed, and that an engine under such conditions would sometimes emit sparks
To avoid liability for a fire set by its engine it was incumbent upon defendant to show to the “satisfaction of the court or jury” both that it was in good order and that it was properly managed at the time. The management was a matter peculiarly within the knowledge of the engineer and fireman. The engineer testified in part that he was 25 years of age, with about 2y% years’ experience as a locomotive engineer; had no regular run, but worked mostly on freight trains in defendant’s employ as an extra engineer, to run when the regular men- laid off; did not think he had run this engine before; did not know its size or length, nor the length of its flues, nor size of its diaphragm, smoke box, or screen; did not notice that anything was wrong with the netting, or that the engine was throwing sparks; did not remember when the fireman last fired before reaching Perry, or whether he had the door -of the fire box open as they passed through there;
Plaintiff also produced two witnesses, who gave evidence to the effect that upon the same trip this engine
It is fairly manifest from the setting of this case that the available evidence for plaintiff as to condition and operation of this engine were necessarily circumstantial, while the direct was in control' of and available to defendant. The jury had the unquestioned right to weigh both, and determine the value of each. They had the right to find that the admissible circumstantial evidence relative to a fact in dispute was more convincing and outweighed the direct testimony of witnesses as to such fact. It is not for the court' to weigh such evidence or pass upon the credibility of witnesses. The law does not define the weight to be given to such evidence; but where a material issue is raised by direct or circumstantial evidence, either or both, the whole matter comes within the scope and province of the jury.
Counsel for defendant urges that under the overwhelming and conclusive evidence introduced by it a verdict should have been directed for defendant, by authority of Dolph v. Railway, 149 Mich. 278 (112 N. W. 981), which is said to be directly in point and con
“We do not think that the statute of Michigan makes an issue of fact that must, under all circumstances, be left to the jury. When the railroad company has established by reputable and uncontroverted evidence that its appliances were such as good railroading requires, that they were in the condition required by the law, and properly managed, we think the question is one of law for the determination of the court, and not one of fact to be decided by the jury.”
This was illustrated by supposititious cases readily distinguishable from the instant case, and it was further stated:
“If different conclusions can be drawn from conceded facts, or if the facts are in dispute, the question belongs to the jury.”
And this concluding general rule, which is plainly applicable to the evidence in this case, is again clearly stated in Clark v. Railway, supra, 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.”
While, as has been often said, no two cases are exactly alike in all details of fact and circumstance, we find nothing in this case which makes inapplicable the rules of law which have been more than once announced in construing the statute involved, and which are amply discussed in the cases herein referred to.
Upon the defense much testimony was introduced as to the condition, kind, and use made of the spark arrester or screen in the engine at the time of the fire, and a sample like the netting used, or type, was produced in court. It was shown that the engine had been overhauled and new netting put in about three
Under the circumstances of this case, and the character of defendant’s testimony relative to the screen, it was not reversible error for the trial court to permit counsel to comment on its nonproduction. It has frequently been held that argument concerning the withholding or failure to produce apparently available and competent evidence upon a material issue is not objectionable. Williams v. Railway Co., 102 Mich. 537,
The judgment is affirmed.