Anderson v. Oregon R. Co.

• Decision Date: 27 June 1904
• Parties: ANDERSON v. OREGON R. CO.
• Court: Oregon Supreme Court

77 P. 119

45 Or. 211

ANDERSON v. OREGON R. CO.

Supreme Court of Oregon

June 27, 1904

Appeal from Circuit Court, Umatilla County; W.R. Ellis, Judge.

Action by Louis Anderson against the Oregon Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The plaintiff seeks by this action to recover damages for loss of wheat by fire while in storage in a warehouse at Cayuse Station, in Umatilla county, which it is alleged was caused by the negligence of defendant in the operation of a train of cars. The negligence stated, in brief, is that the engines of defendant were unskillfully and improperly constructed, and improperly, carelessly, and negligently managed and overloaded, by reason whereof large quantities of sparks burning cinders, and coals were emitted and ejected from such engines while passing in the vicinity, and were thrown upon said warehouse and other buildings in proximity thereto which ignited and set them on fire, whereby they, together with their contents, were destroyed. The defendant is the appellant here.

H.F Conner, for appellant.

S.A. Lowell, for respondent.

WOLVERTON J. (after stating the facts).

The first assignment of error relates to the first clause of paragraph No. 4 of the court's charge to the jury, which is as follows: "I instruct you that a railroad company is bound to use the best or most approved appliances for the purpose of preventing sparks or fire from escaping from its engines and being communicated to property of others rightfully lying upon or along the right of way." The objection to this instruction proceeds upon the idea that the company was not absolutely bound to provide its engines with the most approved appliances for preventing the escape of sparks and cinders, but only to exercise reasonable care and diligence in supplying and annexing such appliances. The general rule seems to be that the company must adopt the most approved mechanical inventions and appliances to prevent the escape of fire, but that, when it has exercised reasonable diligence and precaution in obtaining and putting them into practical use, it has discharged its duty to those who are subject to the dangers incident to the escape of fire. If the company has in good faith sought to procure the best appliances, and has exercised reasonable care and diligence in obtaining them, and if, under all attending and surrounding circumstances, it has acted in the premises as a reasonable, prudent, and cautious person, having due regard to the rights of others, would have acted, then it has discharged its whole duty, and would not incur liability for damages arising from the escape of fire. The basis of the action is negligence, consisting in the want of the exercise of due care in providing the most approved appliances in known practical use. "The true rule is," says Judge Sanborn, with commendable perspicuity, "that, where the defendant has exercised reasonable care to provide the most effective machinery in known practical use to prevent the burning of private property it has fully discharged its duty in that regard." Lesser Cotton Co. v. St. Louis, etc., Ry. Co., 114 F. 133, 141, 52 C.C.A. 95. See, also, 13 Am. & Eng.Encyc.Law (2d Ed.) 473; Pierce, Railroads, 433; 2 Thomp.Comm.Law Neg. § 2253; Gulf, etc., Ry. Co. v. Reagan (Tex.Civ.App.) 32 S.W. 847; Missouri, etc., Ry. Co. v. Mitchell (Tex.Civ.App.) 79 S.W. 94; Flinn v. Railroad Co., 142 N.Y. 11, 36 N.E. 1046; Railroad Co. v. Nelson, 51 Ind. 150; Hoyt v. Jeffers, 30 Mich. 181. This instruction, therefore, states the law in the abstract, but, as applied in practice, the railroad company discharges its whole duty when it uses reasonable care and diligence in supplying and putting into practical use such most approved appliances. The court, however, gave another instruction at the request of defendant, which counsel for plaintiff claims cures the evil, if one exists. It is No. 12, and reads as follows: "The duty to use reasonable care is performed when the company has equipped its engines with the most approved and best known spark-arresting appliances which are approved by the best practice of modern railroad managers, when it uses reasonable care to keep them in such a condition as to properly perform their functions, when it places its locomotives in charge of competent and skillful engineers, and when its locomotives are operated so as not to unnecessarily scatter fire." The two instructions read together tell the jury, in effect, that the company is not liable unless the fire is communicated through its negligence, and that the duty to use reasonable care is performed when the company has equipped its engines with the most approved and best known spark-arresting appliances which are approved by the best practice of modern railroad managers, and when it uses reasonable care to keep them in a condition to perform their functions properly. But these do not eradicate the vice. It defines the reasonable care required to be the actual adoption of the most approved and best known spark-arresters and appliances, whereas the care and diligence required under the rule is in procuring such most approved appliances. Of course, the duty to exercise reasonable care is discharged when the appliances have been adopted and furnished, but it is also discharged when the company has exercised reasonable care and skill in its endeavor to furnish such appliances. The instructions are manifestly inaccurate in their statement of the law. But the defendant asked and procured to be given still another instruction, incorporating precisely the same idea as the first paragraph of No. 4. We allude to instruction No. 14, which reads: "I instruct you that, if you find that the wheat described in the complaint was burned by a fire communicated from the locomotive of the defendant, you must nevertheless find for the defendant, unless you further find, either that the defendant has failed to use the best and most approved appliances to prevent the unnecessary escape of fire from its locomotives, or unless the engines were overloaded," etc., so that, whatever error there appears to be in the statement of the law, the defendant was actively instrumental in bringing it about, hence it cannot be heard to complain, and the case ought not to be reversed because of it.

The second and third assignments of error, which may be considered together, relate to the latter paragraph of instruction 4, which reads as follows: "And if it is proved that an engine, at a particular time, threw an unusual quantity of sparks or coals of fire, you may consider that fact as to whether or not the engine, at such particular time, was either not in good order, or not properly constructed, or not skillfully and carefully managed, or otherwise"--and to the fifth instruction, namely "I instruct you that it is the duty of the railroad company to see to it that its engines and trains are skillfully and carefully managed. And in this connection I instruct you that if you should find from the evidence that there was a heavy grade at the point where the alleged fire occurred, and that a train passing said point just prior to the discovery of the fire was so heavily loaded as to require the engines to be worked hard, and to cause them to emit an unusual quantity of sparks, these are circumstances which you have a right to consider in determining whether or not the engines attached to said train were skillfully and carefully managed." The bill of exceptions shows that the following is all the testimony offered or received at the trial relating to the amount of sparks or coals of fire emitted from the locomotive or locomotives which it is claimed communicated the fire to the buildings. Martin Madison, being called as a witness, testified on direct examination: "The train which was eastbound passed Cayuse Station soon after noon on the 30th day of March, 1903. After doing some switching, the train backed up to the west end of the station yard, and, after stopping there from two to five minutes, went east past the warehouse, which was burned, and then took a run for the hill which is east of Cayuse Station. When they passed the warehouse the front engine was all right, but this back engine, the little one, was doing its best. That is a common occurrence. They all do that. It is a heavy grade east of the station, and the engines have to work hard. The hind engine threw a little fire. It worked all it could when it passed the warehouse. I do not know anything about the grade opposite the warehouse,...