Badman v. Pennsylvania R. Co.
| Decision Date | 18 April 1910 |
| Docket Number | 14-1910 |
| Citation | 42 Pa.Super. 531 |
| Parties | Badman v. Pennsylvania Railroad Company, Appellant |
| Court | Pennsylvania Superior Court |
Argued March 14, 1910
Appeal by defendant, from judgment of C.P. Snyder Co.-1907, No. 12 on verdict for plaintiff in case of Rebecca Badman v. The Pennsylvania Railroad Company.
Trespass to recover damages for the destruction of buildings by fire. Before McClure, P. J.
The facts are stated in the opinion of the Superior Court.
Verdict and judgment for plaintiff for $ 569. Defendant appealed.
Errors assigned were in refusing binding instructions for defendant in overruling defendant's motion for judgment n. o. v.
Affirmed.
Andrew A. Leiser, with him Andrew A. Leiser, Jr., for appellant. -- " Hard puffing" is not evidence of negligence: P. & R. R. R. Co. v. Yerger, 73 Pa. 121.
Where it is admitted or proved that the engine had an approved spark arrester in good condition the fact of a fire will not of itself prove negligence, and the court should direct a verdict for the defendant: McCully v. Clarke & Thaw, 40 Pa. 399-408; Lack. & Bloomsburg R. R. Co. v. Doak, 52 Pa. 379-381; Erie Ry. Co. v. Decker, 78 Pa. 293; Jennings v. R. R. Co., 93 Pa. 337; P. & R. R. R. Co. v. Schultz, 93 Pa. 341; Reading & Columbia R. R. Co. v. Latshaw, 93 Pa. 449; Penna. R. R. Co. v. Page, 11 Cent. Repr. 424.
Albert W. Johnson and Frederic E. Bower, for appellee. -- The case was for the jury: Penna. R. R. Co. v. Stranahan, 79 Pa. 405; Phila. & Reading R. R. Co. v. Hendrickson, 80 Pa. 182; Penna. R. R. Co. v. Hope, 80 Pa. 373; Penna. Co. v. Watson, 81 * Pa. 293; Haverly v. R. R. Co., 135 Pa. 50; Henderson v. R. R. Co., 144 Pa. 461; Byers v. R. R. Co., 222 Pa. 547; John Hancock Ice Co. v. R. R. Co., 224 Pa. 74; Stephenson v. R. R. Co., 20 Pa.Super. 157; Elder Twp. School Dist. v. Penna. R. R. Co., 26 Pa.Super. 112.
Negligence may be established by evidence that engine was improperly operated: Thomas on Negligence, 649; Chicago & Alton R. R. Co. v. Quaintance, 58 Ill. 389; Huyett v. Phila. & Reading R. R. Co., 23 Pa. 373; Phila. & Reading R. R. v. Hendrickson, 80 Pa. 182; Penna. R. R. Co. v. Hope, 80 Pa. 373.
Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
The plaintiff's property consisting of several acres of ground, adjoins the south side of the Sunbury & Lewistown branch of the Pennsylvania Railroad Company, and on it there was erected a brick dwelling house, frame stable, wagon shed, wood shed, and a number of small wooden outbuildings.
On June 27, 1906, a number of these buildings were consumed by fire, alleged by the plaintiff to have been started by sparks thrown from defendant's engine No. 951, and the jury specially finds that this fire was caused by the improper operation of this engine. The principal contention in the court below and in this court, is found in the first assignment of error, " that under all the evidence, the plaintiff is not entitled to recover and the verdict must be for the defendant." The case was tried with exceptional fairness, and after a painstaking consideration by the trial judge, a motion for judgment non obstante veredicto was overruled, and judgment was entered on the verdict. All charges of defect in construction of the engine and its equipment with a properly designed spark arrester, were eliminated on the trial, and the plaintiff's contention was narrowed down to the question, whether or not this engine had been carelessly and negligently operated.
The day on which the fire occurred was warm and dry, with a light wind blowing from the railroad toward the plaintiff's buildings, and the undisputed testimony shows that there was no local originating cause for the fire. The stove fire in the house had been allowed to go out at breakfast, after which time there was no fire about the house or any of the outbuildings. The members of the family and neighbors were engaged in their usual work in the neighborbood, and noticed the fire about half-past one o'clock, on the roof of one of the outbuildings, a few minutes after engine No. 951 had passed, when it was described by several witnesses to be, " as big as a hat," " like a bushel measure," " three or four feet in diameter," and it resulted in the destruction of the buildings and their contents.
On this day, engine No. 951 came to the station at Beaver Springs, at 1:30, hauling a train consisting of two flat cars, one empty, and three steel cars loaded with ballast, passed the plaintiff's property on a level track which is about five feet above the adjoining property. The plaintiff stated that she was seated on her porch, saw the engine and train passing, and when they came back, " they started off like tearing everything up and steam all on, and went up there like crazy," and soon thereafter the fire was discovered. The puffing of the engine was so extraordinary as to attract the attention of other witnesses, who described it as " puffing more than usual," " pulling out lively," " drawing pretty sharp." " It reminded me of an engine standing on a track, with a heavy load, and that could not start it, and the wheels would slip." " Puffing as if going at a full rate of speed," and " very hard puffing as if the wheels had slipped."
One witness who had worked on this train for a number of days preceding the fire, stated that at times this engine would throw a great amount of sparks and cinders, as he states it, " I guess about as good a description as I could give you, as if you were out in a shower of hail, that would cut and burn," and when asked how often it would do this, replied, " Quite frequently; I should say all the time I had been about it."
The sparks and cinders discharged from this engine were described to be of the size of your finger and as big as an ordinary sized chestnut, and were hot enough to burn and blister, so that the employees on the train were obliged to go into the cabin for shelter and this state of affairs had existed for a number of days prior to the fire.
Neither the grade nor the weight of the train imposed an extra tax on the engine, and as aptly stated by the trial judge, in refusing the motion for judgment non obstante veredicto, " it is true there was no occasion for the loud puffing or heavy exhaust, as the engine was drawing a train of but five cars, three of which were loaded and two light, but this appears to be the weakness of the defendant's position, for the jury has no doubt found, and upon competent evidence, that notwithstanding the fact that the train could and should have been gotten under way with a moderate exhaust, the engine started off with more than usual puffing, so as to attract the attention of a number of witnesses," and adds the pertinent query, " Can it be said that it is not negligence for this engineer, without occasion either to start his train or to maintain its speed, to cause his engine to exhaust heavily in close proximity to houses and buildings on a dry, hot day with the wind blowing toward them?" The defendant's experts admitted that it was not necessary on this occasion to work the engine hard, and that it would be carelessness on the part of the engineer to do so, so that, whether there was negligent or an unavoidable emission of the sparks which caused the loss of the plaintiff's property by fire, raised a pure question of fact, upon which a number of witnesses flatly contradicted each other, and the jury was properly called upon to decide it.
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