St. Louis, Iron Mountain & Southern Railway Co. v. Coombs

• Decision Date: 17 June 1905
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. COOMBS
• Court: Arkansas Supreme Court

88 S.W. 595

76 Ark. 132

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. COOMBS

Supreme Court of Arkansas

June 17, 1905

Appeal from Independence Circuit Court.

Judgment affirmed.

B. S Johnson, for appellant.

Railway companies are not liable for damages by fire caused by sparks from an engine, if the company was guilty of no negligence in the construction, maintenance or operation of its engine. 114 F. 133; 15 Com. 124; 80 Pa.St. 182; 67 Ill. 68; 18 Kan. 261; 41 Wis. 78; 36 N.J.L. 553; 31 Ia. 176. The statutory persumption of negligence was overcome by the proof in the cause. 49 Ark. 535; 33 Ark. 816; 53 Ark. 96; 66 Ark. 439; 67 Ark. 514.

Neill & Neill and Authur Neill, for appellees.

Defendant's exceptions were not properly saved, and will not be considered. 28 Ark. 8; 32 Ark. 223; 38 Ark. 532; 39 Ark. 337; 50 Ark. 348; 54 Ark. 16; 59 Ark. 312, 370; 60 Ark. 316; 44 Ark. 264.

MCCULLOCH J. BATTLE, J.

OPINION

MCCULLOCH, J., (after stating the facts.)

Appellant challenged the sufficiency of the evidence to support a verdict for plaintiffs by a request to the court for a peremptory instruction in its favor.

The plaintiffs introduced several witnesses who testified that a short while before the building was discovered to be on fire (the precise time, according to these witnesses, varies from ten to twenty minutes) they saw the engine pass near the building. This is denied by the engineer and brakeman, who testified that they did not go down the track as far as the compress building that day; but the preponderance of the evidence seems to be against them, and the jury, in returning a verdict in favor of the plaintiffs, necessarily found that the engine did pass the building, and there being a substantial conflict in the testimony, we are concluded on this point by the verdict.

The building is shown to have been about 34 feet from the track on which the engine is said to have passed, and no other means appears by which the fire could have been communicated. The fire occurred on Monday, and no persons had been seen in the building since the preceding Saturday, when the man in charge securely fastened it.

In order for the railroad company to be held liable for the damage, the fire must have been communicated by sparks from the engine, and the escape of the sparks must have resulted from negligence on the part of the company or its servants, either in the construction or operation of the engine.

This court held that, from proof that an engine passed near inflammable material immediately before the discovery of fire, there being no evidence to explain its origin, the jury may infer that the fire originated from sparks from the engine. Railway Company v. Dodd, 59 Ark. 317. In that case the court said: "The cotton was liable to take fire from these trains, and communicate it to the depot. One of them passed ten or fifteen minutes before it was destroyed. The cotton caught fire, and the depot was consumed by it. These were facts from which the jury might have inferred that the fire originated in sparks from the engine of the train which had just passed, there being no evidence to explain its origin upon any other theory. All these facts tended to show that the property of appellees was destroyed through the negligence of appellant, and are sufficient to sustain the verdict of the jury in this court." This enunciation is in line with many adjudged cases on the subject. Burke v. L. & N. Ry. Co., 54 Tenn. 451, 7 Heisk. (Tenn.) 451; Karsen v. M. & St. P. Ry. C., 29 Minn. 12; Woodson v. M. & St. P. Ry. Co., 21 Minn. 60; Hagan v. Railroad Company, 86 Mich. 615; Johnson v. Railway Company, 77 Iowa 666; Barron v. Eldredge, 100 Mass. 455; Smith v. London & Southwestern R. Co., L. R. 6 C. P. 14; 3 Elliott on Railroad, § 1243.

When it is proved that the fire originated from an engine of the defendant railroad company a prima facie case is made for the plaintiff, and it then devolves upon the railway company to exonerate itself from the charge of negligence. Little Rock & F. S. Railroad Company v. Payne, 33 Ark. 816; Tilley v. S. L. & S. F. Ry. Co. 49 Ark. 535, 6 S.W. 8; 3 Elliott on Railroads, § 1244.

The jury having found, upon legally sufficient evidence, that the fire was communicated by sparks escaping from the engine, the next inquiry presented, is, whether appellant overcame the presumption of negligence arising therefrom.

The engineer and yard watchman and the regular fireman, who was off duty the day of the fire, testified that they examined the engine immediately after the fire, and found the spark arrester in good condition. Three days later the engine was examined at Newport by an expert from the shops of appellant at Baring Cross, who testified that the spark arrester was of the most approved pattern in use, and was then in good condition. Mr Luttrell, the superintendent of locomotives of appellant company, testified that the kind of spark arrester on the engine in question was the most approved in practical use, and that, "if it was in good condition at the time, the parts all tight in their places, screwed up as they belong, and no holes or apertures that were not made in them," sparks or cinders of sufficient size to ignite anything could not, in his opinion, escape. He said: "I do not think it possible for sparks from an engine equipped like this to set fire to hay from a spark falling 35 or 40 feet." The engineer testified, also, to the effect that an engine equipped with that kind of spark arrester would not, unless there was some defect or break in it, throw sparks large enough to set fire to anything. There was no testimony on the part of appellant as to the manner in which the engine was being operated when it passed the building, as the witnesses introduced denied that they passed down by the compress at all.

So the case stands thus: From the fact that the engine passed near the building a few minutes before the fire, and that its origin cannot be accounted for upon any other theory, a conclusion is warranted that it was communicated from the engine; and it is shown by said agents of appellant that a spark arrester of approved pattern, in good condition, such as is in common use, will not emit sparks of sufficient size to ignite inflammables. Against this the witness introduced by appellant...