Illinois Central Railroad v. Thomas
Illinois Central Railroad v. Thomas
Opinion of the Court
delivered the opinion of the court.
This is an appeal from a judgment rendered in the court below for damages sustained by appellee while endeavoring to extinguish a fire alleged to, and found by the jury to, have been set out by one of appellant’s trains. Appellee was the owner of a small tract of land adjoining appellant’s right of way on which was situated two brick kilns, several dry sheds, and an
It seems that appellee and his assistants failed to extinguish the fire before it reached the dry sheds by fighting it from the rear, his testimony on that point being as follows:
“A. I fought the fire in the hollow towards the railroad until I saw there would be no chance to whip it out there, aDd I went around and got under the shed, with the idea that when it burned up and died down, or the wind would blow it back, I could run in there and fight it, and I did so. As the current of air carried the flames in front of me, I run in at that time and commenced fighting, and the wind blew, the fire on me, and in trying to get out, I struck a post in the ditch, and I was blinded, and the flame come on me again, and I run under the shed. Q. State what damage, if any, was done. A. My eyes were burned, and this side of my face and nose.”
Another portion of his testimony indicates that when the flame was blown into his face he closed his eyes, and while his face and nose were blistered thereby, his eyes would probably not have been burned had he not been forced to open them when he struck the post.
With reference to the injury to his eyes, Ms testimony was as follows:
“A. Well, my eyes are, to some extent, inflamed yet, because an ordinary light hurts them, and wherever I look — it doesn’t matter what it is — there is a blurred spot before my eyes, which hinders me from seeing; and I’m all the time trying to place my eyes to get to see better, but it doesn’t do any good. It’s merely a sensation to want to see better, and I am trying to see better. Q. Were your eyes that way before this fire? A. No, sir.”
The two assignments of error argued are: First, that the court below erred in not. granting appellant a peremptory instruction; and, second, that the court erred in granting the one instruction granted appellee. It is sought to uphold the first assignment of error upon two grounds first, there is no evidence from which the jury could infer that the fire was set out by appellant’s train, and second, that the setting out of the fire was not the proximate cause of appellee’s injury.
On the evidence we think the question of whether or not the fire was set out by this train was for the jury, and if it was set out by this train, then under section 1985 of the Code, negligence on appellant’s part in this connection must be presumed, there being no evidence disclosing the facts and circumstances under wMch the fire was in fact set out.
It is not necessary that appellant’s negligence should have been the sole proximate cause of appellee’s injury in order that it may be liable for damages resulting therefrom, and if authority be desired for the holding that the setting out of the fire was a proximate cause of appellee’s injury, it can be found in Railroad Co. v. Siler, 229 Ill. 390, 82 N. E. 362. 15
Conceding, but solely for the purpose of the argument, that appellee was guilty of negligence in the manner in which he attempted to extinguish the fire, appellant is not, under our concurrent negligence statute, exonerated from all liability by reason thereof.
No error was committed in granting appellee’s instruction. This instruction together with the form in which counsel for appellant in their brief suggest that it should have been given, will be set out by the reporter.
Reference
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- Illinois Central Railroad Company v. Thomas
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- 1. Eailkoads. Fires. Question for jury. Presumption and burden of proof. Liability for injuries. Proximate cause. Comparative negligence. Action for injuries. Where immediately after the passing of a train, the grass on plaintiff’s land adjoining the railroad company’s right of way was discovered on fire and no fire had been seen in the vicinity before this time, it was a question for the jury as to whether or not the train had set out the fire. 2. Railroads. Fires. Presumption and burden of proof. If a fire was set out by a railroad train, and there was no evidence disclosing the facts and circumstances under which it was set out, negligence on the company’s part will be presumed under Code 1906, section 1985, so providing. 3. Railboads. Fires. Liability for injuries. Proximate cause. In a suit against a railroad company for injuries sustained by plaintiff in fighting a fire set out by a railroad train, it was not necessary since the comparative negligence statute, that the company’s negligence should have been the sole proximate cause of the injury. 4. Railboads. Fires. Liability for injuries. Proximate cause. Where fire was set out by a railroad train in grass on plaintiff’s land adjoining the railroad company’s right of way and was being • blown towards plaintiff’s property and plaintiff in fighting the fire was injured by the wind blowing the fire on him, the setting out of the fire was a proximate cause of his injury. 5. Same. In such case the fact that plaintiff was negligent in the manner in which he attempted to extinguish the fire did not, under the concurrent negligence statute, exonerate the railroad company from liability. 6. Railboads. Fires. ■ Action from injuries. Instruction. Where in an action for injuries, there was evidence that a fire in grass on plaintiff’s land adjoining a railroad right of way was set out by a railroad train and that plaintiff to protect his property was fighting the fire, that the wind blew the fire upon him, blistering his face and nose, that he closed his eyes, and that his eyes would probably not have been burned, had he not run into a post as he was trying to get out of the fire, forcing him to open' his eyes. In such case it was not error for the court to charge the jury for plaintiff, that if the fire was set out by stparks from a train and threatened the destruction of plaintiff’s property, and if plaintiff, exercising due care and caution, undertook to extinguish it, and while fighting the fire and exercising reasonable care, the flames were blown in his face and he was burned and injured, defendant was liable for all injuries resulting on account of such burning, and that in estimating the damages the jury should consider not only his loss of time, but the pain and suffering endured by him, and also the damage to his eyesight if there was any such damage.