Albert v. Northern Central R. R. Co.

• Decision Date: 03 October 1881
• Citation: 98 Pa. 316
• Parties: Albert and Lahr <I>versus</I> Northern Central Railway Company.
• Court: Pennsylvania Supreme Court

98 Pa. 316

Albert and Lahr versus Northern Central Railway Company.

Supreme Court of Pennsylvania.

June 10, 1881.

October 3, 1881.

June 10th 1881.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ., GREEN, J., absent.

ERROR to the Court of Common Pleas of Northumberland county: Of May Term 1881, No. 22.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

S. P. Wolverton (Joshua W. Comly with him), for the plaintiffs in error.—Having shown by circumstantial evidence that the plaintiff's mill was in all probability set on fire by sparks thrown to an enormous distance by either Engine 21 or 126, our offers were admissible to show that for a month previous to the fire, engines passing the mill at about the same hour in the evening threw out cinders and live coals of an usually large size to a great distance from the track; this for the purpose of showing that the spark arresters of those engines were defective. If it was alleged that such large cinders did not come from either of those engines it was peculiarly within the power of the defendants to show that. But we should have been permitted to show the fact that numerous fires had been caused in that manner, and to have produced in evidence specimens of the cinders found the next morning after the fire between the railroad track and the mill. Such evidence, in the absence of contradiction, was the best which the nature of the case would permit, and would warrant an inference by the jury, that the defendant's engines were not in proper condition on the night of the fire. Evidence of other fires occurring about the same time has been held to be admissible to show negligence: Huyett v. Reading R. R. Co., 11 Har. 373; Lehigh Valley R. R. Co. v. McKeen, 9 Nor. 122; Penna. R. R. Co. v. Stranahan, 29 P. F. Smith 405; Field v. New York Central R. R. Co., 32 N. Y. 346; Grand Trunk R. R. Co. v. Richardson, 1 Otto 454. The instruction of the court that, even if the mill, 109 feet from the railroad, was burned by sparks from the defendant's engines, such fact constituted "no ground for an inference that such burning was caused by negligence, and was no evidence of negligence," really took the case from the jury, and was in opposition to almost every decision on the subject. Experience has demonstrated that railway companies, by the use of mechanical contrivances, can effectually prevent the escape of fire from engines, which could communicate fire to such a distance, and railroad companies should be held to a strict measure of accountability for failure of duty in such respect: Lackawanna & Bloomburg R. R. Co. v. Doak, 2 P. F. Smith 381; Shearman and Redfield on Negligence, section 333; Wharton on Negligence, page 71. The other portions of the charge assigned for error, as well as the tenor of the whole charge, tended to unduly influence the jury to find a verdict for the defendant.

J. B. Packer (with him W. C. Packer), for the defendant in error.—The burden of proof was on the plaintiffs to show negligence. The vague testimony that the engines 21 and 126 threw unusually large sparks on the night of the fire, was of itself insufficient to shift the burden; and the offers to show that engines of ...