The Atlas Assurance Co. brought suit in the Cuyahoga Common Pleas against the Erie Rd. Co. and James Davis, Director General of Railroads, to recover an amount the Assurance Co. had paid to the Great Western Oil Co., the insured under certain fire insurance policies, by reason of loss by fire, of gasoline and oil belonging to the Great Western Oil Co. Judgment in Common Pleas Court was for the Great Western Oil Co. The case on being taken to the Court of Appeals was reviewed, and judgment was affirmed as against Davis, but reversed as to the Erie Rd. Co.

A stipulation of facts between the parties brought to light that the gasoline tank car, standing on a siding, was being tested by an employe of the Oil Co., who found it impossible to replace the lid on the tank, and that the firebox of a passing locomotive ignited the fumes escaping from such tank, destroying 2 carloads of high test gasoline, and one of oil, together with the machinery contained therein.

The plaintiff in error claims that under 8970 GC., which recites that a Railroad Co. is liable for all losses or damages on land belonging to it caused by operating such road; no liability is created, and under 8952 GC. the railroad may avoid what liability is imposed by 8970 GC. by showing that the owner of property damaged was neglegent in permitting his property to remain as if no railroad passed through or near such property; and if scintilla of evidence exists as does in the instant case it should be submitted to a jury.

The issues before the Supreme Court in this case are:

1. Is Sec. 8970 GC., as construed by the lower courts, unconstitutional?

2. Did facts in the case under 8972 GC. raise a question for the jury?

3. Does, or does not liability exist, if owner of property is found to be negligent?