Appeal, No. 378 | Pa. | Mar 2, 1896
The errors assigned to the charge of the learned judge of the court below really raise but one question, viz: Does the fact, that the fire started on the defendant’s right of way show negligence on its part ? The facts that the engine that passed over the road a short time before the fire was provided with an approved spark arrester, which was in good order at the time, and that there was no negligence in the management of the engine or the train drawn by it, had been conceded on the trial. The charge of negligence could only rest therefore on the fact that the fire began in the defendant’s right of way, or that the right of way had been so neglected and covered over with combustible material as to make it a source of danger to adjoining prop erty. 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 accumulation of 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. We see no reason for disturbing this judgment and it is accordingly affirmed.