Byers v. Baltimore & Ohio Railroad
Byers v. Baltimore & Ohio Railroad
Opinion of the Court
Opinion by
Plaintiff in this case is the owner of a farm adjoining the tracks of the defendant company. Upon this farm stood his barn, 229 feet north of the railroad track, and his house was located about the same distance from the railroad, and about 100 feet away from the barn. On January 17, 1905, in the forenoon, the barn and other outbuildings caught fire and were destroyed. A relief train of the defendant passed the location of the property a few moments before the fire was discovered. The plaintiff charged the defendant company with negligence, in that it had not provided the locomotive of the relief train with an efficient spark arrester, and that by reason of its neglect and oversight in this respect, sparks of unusual size escaped from the locomotive, and set fire to the buildings. He therefore brought this action to recover from the defendant company the damages sustained in the loss of the property. At the trial, plaintiff testified that he was sitting in his house just before the time of the fire, and saw the relief train pass by; and that he noticed the smoke blow from the railroad towards
The trial judge refused to give binding instructions for the defendant, and submitted the question of defendant’s negligence to the jury, who found for the plaintiff. This appeal is by defendant, and the fourth, fifth and sixth assignments raise the question whether there was any evidence of negligence sufficient to be submitted to the jury. The law governing this class of cases wherein recovery is sought for a loss by fire, caused by sparks from a locomotive engine of a railroad company, has been thoroughly considered in Pennsylvania, and is well settled. A very thorough and elaborate discussion of the subject by Justice Clark is found in Henderson v. Railroad Co., 144 Pa. 461, where, upon page 479, the following statement of the rule is quoted with approval: “ It devolves upon the plaintiff to prove by a preponderance of evidence that the fire was communicated by sparks or cinders from the railway engine. It need not be shown that any particular engine was at fault, but it will be sufficient if the fire is proved to have been set by any engine passing over defendant’s railway, and the evidence may be wholly circumstantial; as, first, that it was possible for fire to reach the plaintiff’s property from the defendant’s engines; and, second, facts tending to show that it probably
If the testimony in these respects was believed by the jury, it was sufficient to justify the inference that an imperfect and inferior spark arrester was used, and that the fire resulted from this fact.
In the first assignment of error counsel for appellant questions the admissibility of plaintiff’s testimony, as to the condition of the spark arrester upon the engine, when he saw it, two or three days after the fire, and when the appearances indicated
In the second and third assignments of error, complaint is made of the action of the trial judge in permitting the cross-examination of defendant’s witnesses with regard to three cinders which were shown them. They were asked if the smallest one of the three cinders could pass through the netting of the spark arrester if it was in good condition. The three cinders had not been admitted in evidence, for the reason that the plaintiff could not identify the particular one he had seen fall hot upon the porch. But he testified that it was one of the three,, and the inquiry was confined to the smallest one. So that no harm was done to defendant in this respect. The witness had testified that large sparks or cinders would not escape through a spark arrester in good condition. On cross-examination, counsel might then properly have shown him
The assignments of error are all overruled, and the judgment is affirmed.
Reference
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- Byers v. Baltimore & Ohio Railroad Company
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- Syllabus
- Railroads — Sparks—Evidence—Burden of proof. In an action against a railroad company to recover for the destruction of property by fire from sparks, it devolves upon the plaintiff to prove by a preponderance of evidence that the fire was communicated by sparks or cinders from the railway engine. It need not be shown that any particular engine was at fault, but it will be sufficient if the fire is proved to have been set by any engine passing over defendant’s railway, and the evidence may be wholly circumstantial; as, first, that it was possible for fire to reach the plaintiff’s property from the defendant’s engines, and, second, facts tending to show that it probably originated from that cause, and from no other. In such a case where the plaintiff is suing for the destruction of a barn, the question of the defendant’s liability is for the jury, if there is evidence tending .to prove that it was possible for fire to reach the barn from defendant’s engine; that sparks as large as hickory nuts were seen escaping from a locomotive which passed just before the fire; that the wind blew towards the building; that a few moments before the fire the sound of something falling upon the porch of the house or porch roof was heard, and at least one cinder, hot and- smoking, was seen on the porch of the house, about as far from the track as the bam; that the fire was discovered on the shingle roof of the barn on the side next to the railroad, a few moments after the train had passed; and that the spark arrester on the engine in question, when examined two or three days afterwards, showed signs of fresh repair. In an action against a railroad company to recover for the destruction of property from the escape of sparks, the plaintiff may testify that he examined the engine which was alleged to have caused the fire, two or three days afterwards, and found that the spark arrester showed signs of fresh repair. In such a case where the plaintiff testifies that he had seen a hot cinder fall on his porch, and testifies that it was one of three cinders shown, and a witness for defendant testifies that large sparks or cinders would not escape through a spark arrester in good condition, such witness may be shown on cross-examination the smallest of the three cinders for the purpose of establishing or fixing by comparison the size of cinders that could pass through the meshes of a properly equipped spark arrester. Any article made important by evidence, or by the nature of the investigation may be produced or inspected.