Fitch v. Pacific R.R. Co.
| Decision Date | 31 January 1870 |
| Citation | 45 Mo. 322 |
| Parties | WILLIAM FITCH, Plaintiff in Error, v. The PACIFIC RAILROAD COMPANY, Defendant in Error. |
| Court | Missouri Supreme Court |
Error to First District Court.
Elliot & Blodgett, for plaintiff in error.
The plaintiff having shown that the fire originated from sparks escaping from defendant's engine, the burden of proof was on the defendant to show that the engine from which the sparks escaped was, at the time, equipped with the most improved mechanical contrivances employed to prevent the escape of fire.
Crittenden, and Cockrill, for defendant in error.
I. If plaintiff, by permitting inflammable matter to grow and remain on his premises adjacent to those of defendant in error, contributed to his loss, he can not recover. It is enough to defeat him if the injury might have been avoided by the exercise of ordinary care upon his part. . The degree of the defendant's negligence is immaterial in determining questions of contributory negligence. (Catawissa R.R. Co. v. Armstrong, 49 Penn. 186; 23 Conn. 437; 24 N. Y. 430.) In 24 Verm. 487-496, it was decided that in cases of mutual neglect, where it is of the same character and degree, no action can be sustained.
II. Plaintiff has shown no diligence in protecting his property against the obvious dangers of fire unavoidably issuing from the locomotives of defendant whilst it was engaged in a lawful business. The injured person must have used care proportioned to the danger to be avoided. (Mackey v. N. Y. Cent. R.R. Co., 27 Barb. 528-542; 20 N. Y. 492; 8 Barb. 368; Shearm. & Redf. Neg. 34, § 34; 30 Penn. St. 454; 36 Mo. 487; 17 Barb. 94; 6 Cush. 292; Shearm. & Redf. Neg. § 5.)
III. Plaintiff having charged in his petition that the burning of the corn and fencing was negligently done by the defendant, it must be shown affirmatively as a matter of fact--not one of presumption. (1 Allen, Mass., 187; 37 Md. 287; 20 N. Y. 65; 62 Barb. 165; 2 Am. R.R. Cases, 325-30; 44 Ill. 460; 18 Barb. 80.BLISS, Judge, delivered the opinion of the court.
The plaintiff charges defendant with negligently and carelessly, and for want of due care and prudence in running its locomotives and cars, setting fire to and burning up his fences and corn fields, etc. Defendant joined issue, and judgment was recovered by the plaintiff in the Johnson Court of Common Pleas, which was reversed in the District Court.
At the trial, the plaintiff gave evidence tending to prove that the fires were kindled by sparks from the smoke-stacks of defendant's engine; that an unusual amount of smoke and sparks were emitted at the time; that the fire caught near the railroad track, in the dry grass, and also in the plaintiff's contiguous inclosure, and ran through his field and burned up his fences; that one of defendant's engines which ran that season upon this road was without the usual and suitable screens upon the smoke-stack to prevent the escape of fire, and that fire had frequently caught near the track from that engine; but it did not affirmatively appear that the fire was kindled by that engine, or that it was running at the time. The defendant gave evidence tending to prove that the company used the best machinery and contrivance to prevent the escape of sparks; that its engines always left the stations in good condition; that the fissures in the fire screens were about one-eighth of an inch in width; that the small sparks that could escape through these are not dangerous, and could not fire the grass; and that the engineers employed were competent and careful. Evidence was also given tending to show that both in the plaintiff's field near the railroad, and also inside of the railroad fence, there was dead grass, which was easily ignited. The court gave to the jury all the instructions requested by defendant's counsel, and also gave several instructions asked by the plaintiff, to which exceptions were taken.
It is unnecessary to comment in detail upon all these instructions, as the points raised and relied upon by defendant's counsel can be more briefly considered. The defendant denies, first, that negligence was proved, and claims that if the fire was kindled by its engine, as charged, still inasmuch as the dry grass was permitted by the plaintiff to remain in his field and fence corners, which became food for the fire and contributed to the damage, it was such contributory negligence as should exonerate it from liability. It can not claim absolute misdirection in charging the jury on this point, for its positions were all given them in general terms, as the law of the case; but it does claim that the instructions given on behalf of plaintiff were not sufficiently qualified by directing attention to the true doctrine. The jury could hardly have been deceived as to the views of the court upon the subject, nor would the facts in this case have warranted a finding for defendant upon this ground alone.
There have been by no means such clearness and precision, or even uniformity, in the multitude of decisions upon this subject, in our sister States, as to leave the matter free from doubt. All agree that the plaintiff's fault must proximately contribute to the injury in order to constitute any ground of defense, but the precise meaning attached to the term is not always made clear. (See cases cited in Shearm. & Redf. on Negligence, §§ 33-5, pp. 382-3.)
The relation to the injury is not one of time or space, and it is not easy to give such perfect definitions as shall apply to all cases. Yet, as injuries from mutual negligence arise, it is seldom difficult to fix upon the proximate cause. The natural reason--our judicial instincts--seize at once upon it and separate it from those more remote, although the injury could never have been inflicted without the latter.
Light may be thrown upon the question by applying the old distinction between causes and instruments, making the remote causes but the instruments, in the scholastic sense, through which the direct causes could operate. And no better illustration of this distinction can be given than the case at bar. The plaintiff's fences and corn were destroyed by the fire kindled by defendant's engine. Assuming that the kindling of this fire was the result of defendant's negligence, that negligence was the proximate cause of the destruction. But the fire, it is assumed, would not have destroyed the plaintiff's property had he kept his fields and fence corners thoroughly free from dried grass and herbage. This fuel, then, thus in part furnished by the plaintiff, was the remote cause--the instrument through which the defendant's negligence was enabled to do the mischief.
The modern decisions in our own State have contributed to remove the ambiguity. Huelsenkamp v. Citizens' Railw. Co., 37 Mo. 537, is the leading case, and in it the authorities are reviewed, and the kind of contributory negligence that will excuse a defendant is defined as applied to passenger carriers (see p. 549). The more recent case of Morrissey v. The Wiggins Ferry Co., 43 Mo. 480, affirms the former decision and restates the rule to be “that the carrier shall be guilty of some negligence, which mediately or immediately produced or enhanced the injury, and that passengers should not have been guilty of any carelessness and imprudence which directly contributed to the injury, since no one can recover for an injury of which his own negligence was, in whole or in part, the proximate cause; and that, although the plaintiff's misconduct may have contributed remotely to the injury, if the defendant's misconduct was the immediate cause of it, and, with the exercise of prudence, he might have prevented it, he is not excused.” We have only to apply the rule to cases like the one at bar, so far as their different character will permit.
Firstly, the jury, in order to charge the defendant, must find...
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