Allen-Wright Furniture Co. v. Hines

• Decision Date: 01 July 1921
• Citation: 34 Idaho 90,200 P. 889
• Parties: ALLEN-WRIGHT FURNITURE COMPANY, a Corporation, et al., Respondents, v. WALKER D. HINES, Director General of Railroads of the United States, Appellant
• Court: Idaho Supreme Court

200 P. 889

34 Idaho 90

ALLEN-WRIGHT FURNITURE COMPANY, a Corporation, et al., Respondents, v. WALKER D. HINES, Director General of Railroads of the United States, Appellant

Supreme Court of Idaho

July 1, 1921

RAILROADS-NEGLIGENCE-SETTING FIRES-PROOF OF FIRES-BURDEN-INSURANCE COMPANIES-PAYMENT-SUBROGATION-OTHER FIRES-CONTRIBUTORY NEGLIGENCE.

1. When it is satisfactorily shown that a defendant operating a railroad has set fire to and destroyed property adjacent to its right of way by the emission of sparks from his locomotives, a prima facie case of negligence has been made which it is incumbent upon the defendant to rebut by showing that he exercised reasonable care in the equipment maintenance and operation of his locomotives.

2. Such prima facie case can be made by circumstantial evidence, and if such circumstantial evidence, together with other evidence, if any, tending to show defendant's negligence outweighs that offered by defendant, the plaintiff is entitled to recover.

3. Evidence of other fires set and of the emission of sparks by other engines at about the same time and place is admissible as tending to show a habit of negligence on the part of the defendant, and as tending to show the possibility, and a consequent probability that a locomotive set the fire.

4. An insurance company liable for a loss of property by fire through the negligence of a defendant operating a railroad having paid said loss is subrogated to all the rights of the insured against such defendant on account of such loss to the full amount paid to the insured.

5. The defense of contributory negligence based upon the claim that the burning of the property destroyed was caused by the negligence and carelessness of plaintiff in knowingly permitting dry weeds to accumulate in the vicinity and immediately adjacent to the building destroyed is not available to a defendant operating a railroad charged with negligently burning the property of plaintiff.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. P. McCarthy, Judge.

Action for damages. Judgment for plaintiff. Defendant appeals. Affirmed.

Affirmed, with costs to the respondent.

Geo. H Smith, H. B. Thompson and John O. Moran, for Appellant.

Subrogation was never intended for the relief of those who were at liberty to elect whether they would or would not be bound and cannot be invoked by a volunteer who, without being legally bound, pays the debt of another. (Aetna Life Ins. Co. v. Town of Middleport, 124 U.S. 534, 8 S.Ct. 625, 31 L.Ed. 537; 25 R. C. L. 1324; Pensacola State Bank v. Thornberry, 226 F. 611, 618, 141 C. C. A. 367; Prairie State National Bank v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412.)

Where the particular engine which is claimed to have set the fire is identified, the plaintiff cannot introduce evidence of other fires or the emission of sparks by other engines of the defendant, except under certain conditions which did not obtain in the case at bar. (11 R. C. L. 996-999; Lesser Cotton Co. v. St. Louis, I. M. & S. Ry. Co., 114 F. 133, 52 C. C. A. 95; Texas & Pacific Ry. Co. v. Hartford Fire Ins. Co., 230 F. 801, 145 C. C. A. 111; Sprague v. Atchison, T. & S. F. Ry. Co., 70 Kan. 359, 78 P. 828; Crissey etc. Lumber Co. v. Denver & R. G. R. Co., 17 Colo. App. 275, 68 P. 670; Buhrmaster v. New York Cent. & H. R. Co., 173 A.D. 62, 158 N.Y.S. 712; note to 21 Ann. Cas. 1212, 1213; Gleason v. San Pedro, L. A. & S. L. R. Co., 49 Utah 405, 164 P. 484.)

Before the plaintiff can be said to have made a prima facie case, he must introduce evidence which would support a finding that the fire was ignited by an engine of the defendant. (Fodey v. Northern P. Ry. Co., 21 Idaho 713, 123 P. 835; Osborn v. Oregon R. & N. Co., 15 Idaho 478, 16 Ann. Cas. 879, 98 P. 627, 19 L. R. A., N. S., 742; Mt. Emily Timber Co. v. Oregon W. R. & N. Co., 82 Ore. 185, 161 P. 398; Lares v. Chicago, B. & Q. R. Co., 144 Minn. 170, 174 N.W. 834; St. Louis & S. F. R. Co. v. Mobley (Okl.), 174 P. 510; Kansas City Southern Ry. Co. v. Henderson, 54 Okla. 320, 153 P. 872; Thorgrimson v. Northern P. Ry. Co., 64 Wash. 500, 117 P. 406.)

The court erred in refusing defendant's requested instructions Nos. 4 and 5, which placed upon the plaintiff the burden of establishing, first, that the fire was started by the defendant, and, secondly, that it was negligently started, and in charging only that the burden was on the plaintiff of proving that the property was destroyed by fire communicated from an engine, and in the same connection charging that the burden of proof was on the defendant to overcome the presumption of negligence arising from the starting of a fire. (Osborn v. Oregon R. & N. Co., supra; Fodey v. Northern P. Ry. Co., supra; Abbott's Civil Jury Trials, 3d ed., 680; Toledo, St. L. & W. R. R. v. Star Flouring Mills Co., 146 F. 953, 959, 77 C. C. A. 203.)

Under the pleadings and proof the issue of the negligence of the Allen-Wright Furniture Company directly contributing to and proximately causing the fire should have been submitted to the jury. (St. Louis Southwestern Ry. Co. v. Arey, 107 Tex. 366, 179 S.W. 860; Hartford Fire Ins. Co. v. Central R. R. of Oregon, 74 Ore. 144, 144 P. 417; Slossen v. Burlington, C. R. & N. R. Co., 60 Iowa 215, 14 N.W. 244; Atchison, T. & S. F. Ry. Co. v. Ireton, 63 Kan. 888, 66 P. 987; Missouri P. Ry. Co. v. Haynes, 1 Kan. App. 586, 42 P. 259; Collins v. New York Cent. etc. R. Co., 5 Hun (N. Y.), 499; Niskern v. Chicago etc. Ry. Co., 22 F. 811; Omaha Fair etc. Assn. v. Missouri P. Ry. Co., 42 Neb. 105, 60 N.W. 330; 3 Shearman & Redfield on Negligence, 1773.)

Plaintiff cannot recover where evidence is equally consistent with existence or nonexistence of defendant's negligence as proximate cause of injury. (Johnson v. Mobile & O. R. Co., 178 Ky. 108, 198 S.W. 538.)

Richards & Haga and J. L. Eberle, for Respondent.

An insurer upon paying to the assured the amount of a loss of property insured becomes subrogated in a corresponding amount to the assured's right of action against the carrier or other person responsible for such loss. (Liverpool & Great Western Steam Co. v. Phoenix Ins. Co., 129 U.S. 397, 462, 9 S.Ct. 469, 32 L.Ed. 788, 799; St. Louis, I. M. & S. R. Co. v. Commercial Union Ins. Co., 139 U.S. 223, 11 S.Ct. 554, 35 L.Ed. 154; Wager v. Providence Ins. Co., 150 U.S. 99, 14 S.Ct. 55, 37 L.Ed. 1013, 1017; Downs Farmers' Warehouse Assn. v. Pioneer Mut. Ins. Assn., 41 Wash. 372, 83 P. 423, 425; Gaugler v. Chicago etc. R. Co., 197 F. 79; Travelers' Ins. Co. v. Great Lakes Engineering etc. Co., 184 F. 426, 107 C. C. A. 20, 36 L. R. A., N. S., 60, 1 N.C. C. A. 747; Federal Ins. Co. v. Detroit Fire & Marine Ins. Co., 202 F. 648, 121 C. C. A. 58.)

Although at common law the action must be asserted in the name of the assured, in this state the action must be prosecuted by the real parties in interest. (C. S., secs. 6654, 6649; St. Louis etc. R. Co. v. Commercial Union Ins. Co., supra.)

Where the insurer pays only a part of the total loss, he must be joined with the assured in an action against the carrier or other person responsible for the loss. (Palmer v. Oregon etc. Nav. Co., 208 F. 666; Gaugler v. Chicago etc. Ry. Co., supra; Webb v. Southern Ry. Co., 248 F. 618, 160 C. C. A. 518; Chicago etc. R. Co. v. Pullman Southern Car Co., 139 U.S. 79, 11 S.Ct. 490, 35 L.Ed. 97; Royal Ins. Co. v. Miller, 199 U.S. 353, 26 S.Ct. 46, 50 L.Ed. 226; Home Mutual Ins. Co. v. Oregon Ry. etc. Co., 20 Ore. 569, 23 Am. St. 151, 26 P. 857; Chicago etc. R. Co. v. German Ins. Co., 2 Kan. App. 395, 42 P. 594; Fairbanks v. San Francisco etc. Ry. Co., 115 Cal. 579, 47 P. 450; Illinois Central Ry. Co. v. Hicklin, 131 Ky. 624, 115 S.W. 752, 23 L. R. A., N. S., 870.)

After the presumption or prima facie case of negligence has been raised as against the railroad company the burden of proof shifts to the company to rebut or overcome this presumption. (Fodey v. Northern P. Ry. Co., 21 Idaho 713, 123 P. 835; Osborn v. Oregon R. & N. Co., 15 Idaho 478, 16 Ann. Cas. 879, 98 P. 627, 19 L. R. A., N. S., 742.)

Evidence that at various times during the same summer before the fire occurred the railroad company's locomotives scattered fire in the vicinity of the fire complained of is admissible to prove the possibility, and a consequent probability, that one of the railroad company's locomotives caused the fire, and as tending to show a negligent habit of the officers and agents of the railroad company. (Grand Trunk Ry. Co. v. Richardson, 91 U.S. 454, 23 L.Ed. 356; Piggot v. Eastern Counties Ry. Co., 3 Com. B. 229, 136 Eng. Reprint, 92; Dunning v. Maine Cent. R. Co., 91 Me. 87, 64 Am. St. 208, 39 A. 352; Sheldon v. Hudson River R. Co., 14 N.Y. 218, 220, 67 Am. Dec. 155; 1 Wigmore on Evidence, pp. 547-549; 1 Jones on Evidence, pp. 843, 846, 851; Texas & P. R. Co. v. Rosborough, 235 U.S. 429, 35 S.Ct. 117, 59 L.Ed. 299, see, also Rose's U.S. Notes; Gleason v. San Pedro etc. R. Co., 49 Utah 405, 164 P. 484; Thatcher v. Maine Cent. Ry. Co., 85 Me. 502, 27 A. 519; Taffe v. Oregon R. etc. Co., 60 Ore. 177, 117 P. 989; Diamond v. Northern P. R. Co., 6 Mont. 580, 13 P. 367; Asplund v. Great Northern Ry. Co., 63 Wash. 164, 114 P. 1043; Northern P. R. Co. v. Lewis, 51 F. 658, 2 C. C. A. 446.)

The fact of communication of the fire need not be shown by direct or positive evidence, but may be inferred like any other fact from other circumstances. (Osborn v. Oregon R. etc. Co., supra; Abrams v. Seattle etc. Ry. Co., 27 Wash. 507, 68 P. 78.)

When the presumption of negligence on the part of the railroad company has been raised, the plaintiff is entitled to recover in the absence of clear and satisfactory evidence on the part of the railroad company showing absence of...