Ann Arbor R. Co. v. Fox

• Decision Date: 07 March 1899
• Docket Number: 636.
• Citation: 92 F. 494
• Parties: ANN ARBOR R. CO. v. FOX et al.
• Court: U.S. Court of Appeals — Sixth Circuit

92 F. 494

ANN ARBOR R. CO. v. FOX et al.

No. 636.

United States Court of Appeals, Sixth Circuit.

March 7, 1899

The plaintiffs, on the 23d day of October, 1895, owned, in the village of Thompsonville, in the state of Michigan, a large quantity of lumber, which lay near the track of the Toledo Ann Arbor & North Michigan Railway Company. About 1 o'clock in the afternoon of that day, the lumber was destroyed by fire. The fire broke out shortly after the passage of a train known as the 'work train.' On behalf of the plaintiffs the claim was that the fire originated from sparks emitted from the engine on this train that the engine was defective in construction, in not being provided with proper spark-arresting devices, and in other respects; that it was improperly managed on the occasion in question; that combustible matter had been carelessly allowed to accumulate on and over the right of way of the railway company; that sparks from the engine fell upon this combustible matter upon the right of way, which took fire that the fire ran through this inflammable material under one of the piles of lumber, and, without fault on the part of the plaintiff, spread over and consumed all of the lumber in the yard. The railway at the time was being operated by Wellington R. Burt, as receiver, appointed by the circuit court of the United States for the Northern district of Ohio. The receiver was subsequently discharged, the railway property having been sold to the defendant, the Ann Arbor Railway Company, which assumed and agreed to pay all of the receiver's debts and liabilities. This action was brought by leave of the court appointing the receiver, for the purpose of having an adjudication as to the liability of the receiver (and the defendant railroad company) for the loss in question. On behalf of the defendant it was claimed that the receiver was not negligent in respect either of the construction or operation of the engine, or the condition of the right of way; that the plaintiffs were guilty of negligence in respect (1) of the location of their lumber; (2) the condition of the ground about the lumber piles; and (3) the failure to use reasonable efforts to stay the progress of the fire.

The case was tried before a jury, resulting in a verdict for the plaintiffs for $15,500, upon which judgment was entered. The right of way of the defendant at the place where the fire occurred was 100 feet in width. The track was in the center of the right of way. The line of the railroad ran northeasterly, and the lumber yard was on the northerly side of the track. The railroad at this point was a part of whet had formerly been the road of the Frankfort & Southeastern Railway Company, which latter company conveyed its railroad to the Toledo, Ann Arbor & North Michigan Railway Company in 1892. The lumber yard in question was owned, and for some years had been operated, by the Thompson Lumber Company. The owners of the Thompson Lumber Company were also largely interested in the Frankfort & Southeastern Railway Company. At the time of the fire, Charles Fox & Co. were the lessees of the Thompson Lumber Company, and were operating the yard. The Thompson Lumber Company had been accustomed to pile lumber on the right of way of the railroad company without its objection. A tramway had been constructed by the Thompson Lumber Company to the north of and lengthwise of the railway track, partly on and partly off the right of way, and piles of lumber were placed on the right of way. This was done originally for convenience in shipping lumber over the railroad, for it was then the custom to load from the piles onto cars standing on the main track of the road. Subsequently a side track was built, extending up into the yard, and thereafter all the shipping was done from the side track. The lumber company, however, continued to pile its lumber in the same place on the railroad right of way; and the successors in title of the lumber company, the defendants in error here, continued the practice, without objection or remonstrance by the railway company. In 1894 the receiver built a fence along the right of way. When the lumber piles were reached, the fence was 'jogged' in towards the track, and was constructed along the top of the bank of the excavation in which lay the railway track. The lumber pile in which the fire first broke out was four feet from the fence. The distance from the fence to the edge of the bank was from six to seven feet. The distance from the top of the bank to the railway track in the cut below was from 15 to 20 feet. Plaintiffs' evidence tended to show that the spark from the engine had fallen into some dry grass on the bank on the railway side of the fence, and set fire to it; that the fire ran along the fence, and thence to the lumber pile, but four feet distant. When the fire was first discovered, there was no blaze visible, except what was readily extinguished, but smoke was issuing from under the pile. Ineffectual efforts were made by several men to put it out by throwing water and dirt under the pile. Other efforts were made to throw the lumber from the top of the pile, but this would have required to much time that the efforts were abandoned. Evidence was also introduced to show that it was suggested to Fox, one of the defendants in error, by an employe of the receiver, that the pile be blown up with dynamite, of which a supply was on hand, but that Fox at first refused, and when he subsequently gave permission, it was then attempted, but without success. At the time of the fire, a strong wind was blowing from the railway track towards the yard. The day was fair, and the season had been dry.

A. L. Smith, for plaintiffs.

Mark Morris and George P. Wanty, for defendant.

Before TAFT and LURTON, Circuit Judges, and CLARK, District Judge.

TAFT Circuit Judge.

The statute of Michigan provides that:

'Any railroad company building, owning or operating any railroad in this state, shall be liable for all loss or damage to property by fire originating from such railroad, either from the engines passing over such road, fires set by the company's employes, by order of the officers of said road, or otherwise originating in the constructing or operating of such railroad; provided, that such railroad company shall not be held so liable if it prove to the satisfaction of the court or jury that such fire originated from fire by engines whose machinery, smoke-stack, or fire-boxes were in good order and properly managed, or fires originating in building, repairing or operating such railroad, and that all reasonable precautions had been taken to prevent their origin, and that proper efforts had been made to extinguish the same in case of their extending beyond the limits of said road, when the existence of such fire is communicated to any of the officers of such company.'

The court charged the jury that:

'When it appears that fire has originated in the manner mentioned by the statute, and injury has happened therefrom, the duty devolves upon the defendant of showing that, notwithstanding it has happened, the railroad company-- or receiver, in this case-- has not been guilty of any negligence which has caused the fire, and has taken proper precautions in the construction and management of his machinery, and in other particulars pointed out by the statute. ' 'Under the statute, upon proof of a fire having started from one of the engines of a railroad company, there is a

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