Annapolis & E.R. Co. v. Gantt

• Decision Date: 17 December 1873
• Citation: 39 Md. 115
• Parties: ANNAPOLIS AND ELKRIDGE RAILROAD COMPANY v. JOHN M. GANTT.
• Court: Maryland Court of Appeals

39 Md. 115

ANNAPOLIS AND ELKRIDGE RAILROAD COMPANY v. JOHN M. GANTT.

Court of Appeals of Maryland

December 17, 1873

APPEAL from the Circuit Court for Anne Arundel County.

This was an action brought on the 13th of April, 1872, by the appellee to recover damages for the destruction of certain cord-wood and growing timber, by fire occasioned by sparks and cinders emitted from a locomotive of the appellant. The defendant pleaded; 1st. Not guilty. 2nd. That the plaintiff was not seized of the land on which he alleges that the cord-wood and woods were destroyed by the defendant. 3rd. That the plaintiff was not the owner of the cord-wood and woods which he alleges in his declaration were destroyed 4th. That the sparks and cinders from the locomotive of the defendant did not set fire to the plaintiff's premises destroying his cord-wood and woods, as alleged in his declaration. 5th. Limitations. Issue was joined on these pleas.

First Exception.--Stated in the opinion of the Court.

Second Exception.--The plaintiff proved by John Bryan that he lived about two hundred yards from Gantt's land. It was in April, 1869, while in his garden at work, he saw the burden train of the defendant go up the road. In about ten minutes he saw smoke and hastened to the place, and saw fire burning in some sedge near the cross-ties of the railroad, about one foot off, and extending to a gulley where there was plenty of wood cut. The fire destroyed cord-wood and young chestnut timber where the wood had been cut out, of which he gave his estimate to the jury. There were many persons fighting the fire. Witness got there in fifteen or twenty minutes after seeing the smoke. He could see the track from his house, and saw no person passing on the track before or after the fire. The witness then said, in answer to a question by the plaintiff's counsel, that he saw the trains every day; that within a week of the time of the fire in question, he had observed the engines of the defendant throwing out sparks of pretty good size, capable of setting fire to anything as dry as it was then, and had frequently run after them and put out fires within that time, but he could not say that he had ever seen such sparks from the locomotive "Annapolis," as he did not notice to see what engines were drawing the trains. The witness then further stated, in reply to questions on the part of the plaintiff, that he had seen coals of fire on the railroad track after the defendant's engines had passed, as large as a pullet's egg, within a week before this fire; that he did not see them dropping from the engines--only saw them after they had passed; but he could not say he had ever seen any such after the "Annapolis" had passed, as he did not notice the particular engines as they passed. (The plaintiff's counsel announcing that the object of this last offer, as to coals, was to shew, in connection with other proof in regard to ash pans, that the engines of the defendant, or some of them, had defective ash-pans.) The defendant's counsel objected to the said questions and answers as to the sparks and fires caused by them, and as to the coals of fire above specified; but the Court overruled the objection, and the questions were accordingly put and answered as aforesaid; to this ruling of the Court the defendant excepted.

Third Exception.--The plaintiff having rested his case, the defendant to sustain the issues on its part joined, proved by John S Sewell, that he was the engineer of the freight train which went up from Annapolis on the morning of the fire on the plaintiff's land; that it was in the first week of April; that the locomotive "Annapolis" was drawing the freight train; and that the said locomotive at the time, was in perfect order, properly constructed with suitable fixtures for preventing injuries by fire, and provided with a smoke-stack and sparkarrester, made by Baldwin & Company, of Philadelphia, of the most approved known pattern then in use for wood-burning engines--the spark-arrester being provided with number eight West iron guage; that on the day in question the ash-pan of the said engine was in perfect order, and the engine throughout was in thorough condition; that he had a competent fireman on board, and himself had been an engineer for thirteen years, and the said locomotive, at the time, was driven with the utmost care and diligence; that when the freight train came down the road towards Annapolis, after one o'clock, he saw cordwood burning near the road; that he had drawn a load of hay, in open cars, behind this engine, without injury, and that the "Annapolis" emitted no sparks which would be likely to cause fires along the road, but was remarkably free from such imperfections; that the ash-pan was not opened upon the road that day, and that no coals could fall out of an ash-pan when the engine was running, unless the pan was defective. When the ash-pan is in good order coals cannot fall out. He saw no sparks flying, and would have seen them if there had been any. He knew of no better smoke stack than the Baldwin, unless it be the Bradley, one of which has been used by the company since eighteen hundred and fifty-four.

And the defendant further proved by John Beall, that he was the machinist of the company at the time of the fire; that the defendant had then in use four engines, and that the engine "Annapolis," at that time, was in thorough order; that it was his business to examine the engines particularly, and that he examined the "Annapolis;" that the ash-pan was close and in good order, as also the smoke-stack and spark-catcher; that the said spark-catcher and ash-pan were, at the time of the fire, suitable fixtures for preventing injury by fire, and of approved design, and in thorough order.

This witness also stated, on cross-examination, that he had known the cars to take fire several times when the Baldwin arrangement was in use, supposed to be from the sparks; that catchers are liable to choke; it is the water from the steam that chokes them. Wood-burners will choke sooner than coal-burners.

After further testimony by the defendant, the plaintiff proved by Messrs. Linthicum and Cole, who testified that they had a long familiarity with locomotives, that locomotives that left coals upon the track when running, could not be in proper condition, and that the smoke stack of a wood engine, properly constructed, with proper spark catcher and properly managed, would not ordinarily emit sparks that would live twenty feet from the top of the stack, but that every locomotive would emit some sparks. The plaintiff then asked each of the witnesses whether in his opinion, an engine which habitually threw out sparks, capable of setting fire to any combustible material along the line of the road, could be in a proper condition? The defendant objected to the question, upon the ground that there was no proof that its engines, at the time, habitually threw out such sparks; and also because there was no proof that the locomotive "Annapolis" ever threw out such sparks. The Court overruled the objection, and allowed the question, which was answered in the negative. The defendant excepted.

Fourth Exception.--The plaintiff offered the five following prayers:

1. If the jury believe from the evidence that the plaintiff's property was damaged by fire communicated from the defendant's engine, then they must find for the plaintiff, unless they further find that the injury complained of was committed without any negligence on the part of the defendant or its agents.

2. If the jury believe from the evidence that the plaintiff's property was damaged by fire communicated from the defendant's engine, then such fire is prima facié evidence of negligence on the part of the defendant.

3. If the jury believe that the fire originated from the defendant's engine, to exonerate the defendant from negligence, they must find that within a reasonable time before the fire in question, the defendant made a thorough examination of the engine, smoke-stack, spark-arrester and ash-pan by skilful and qualified mechanics in the branch of business, and that the same were then in sound and good condition, and so continued up to the time of the fire, so far as could be discovered.

4. If the jury believe from the evidence that the defendants ran engines upon their road, which, at the time of the fire complained of, habitually scattered fire from the ash-pans or smoke-stacks to such an extent as to endanger combustible material along the line of the road, it is a fact from which they may find negligence on the part of the defendants.

5. If the jury find the facts stated in the plaintiff's first prayer, he is not prevented from recovering, although the jury may find that before the time his property is alleged to have been destroyed, he had mortgaged the land to A. Randall, Esq.; if they also find that he was left in possession by the mortgagee, and that the time for payment of the debt has not expired, and that he purchased the land for the purpose of cutting the wood and timber growing thereon at the time.

And the defendant offered the seven following prayers:

1. That unless the jury shall believe from the evidence that the injuries complained of in the declaration, occurred within three years next before the commencement of this suit, the plaintiff is not entitled to recover.

2. That the plaintiff is not entitled to recover in this action in respect of the standing wood and timber spoken of in the declaration, because the legal title in the land on which the same was growing was not in the plaintiff when the fire took place, and has not been in him since.

3. That the plaintiff is not entitled to recover in this action because the legal title in the land on which the wood and...