Baltimore & O.R. Co. v. Shipley

• Decision Date: 16 January 1874
• Citation: 39 Md. 251
• Parties: THE BALTIMORE AND OHIO RAILROAD COMPANY v. NIMROD O. SHIPLEY.
• Court: Maryland Court of Appeals

39 Md. 251

THE BALTIMORE AND OHIO RAILROAD COMPANY v. NIMROD O. SHIPLEY.

Court of Appeals of Maryland

January 16, 1874

APPEAL from the Circuit Court for Frederick County.

This was an action on the case, instituted by the appellee under Article 77, of the Code, to recover damages for the destruction of his property by fire from the engines of the appellant. The track of the defendant ran through the farm of the plaintiff, some three or four hundred yards on the north side, and a still greater distance on the south side. On the 23rd of September, 1871, a fire occurred on the plaintiff's farm, destroying a tobacco house filled with hay, a large number of tobacco sticks and fence rails; and about fifty or sixty acres of clover on the land in seed. Evidence was offered tending to show that the fire which destroyed the plaintiff's property, originated from the engines of the defendant. Sundry exceptions were taken by the defendant. The jury rendered a verdict in favor of the plaintiff for $1145, and judgment was entered accordingly. The defendant appealed.

The cause was argued before BARTOL, C.J., BOWIE, ALVEY, and ROBINSON, J.

Charles W. Ross and John K. Cowan, for the appellant.

Francis Brengle, for the appellee.

ROBINSON J., delivered the opinion of the Court.

This suit was brought to recover damages for the destruction of the plaintiff's property by fire from the engines of the defendant.

The question presented by the first exception, is whether it was competent for the plaintiff to prove that none of the hands or employés of the defendant were present aiding and assisting in putting out the fire, the plaintiff stating at the time that he proposed to follow it by proving that a gang of ten or twelve men employed for the purpose of repairs on the section of the road where the fire occurred were absent not on business of the Company. This evidence was offered to prove negligence on the part of the defendant. In this State where property is destroyed by fire from a locomotive engine the burden of proof is upon the company to show that the fire was occasioned "without negligence." Art. 77, sec, 1, Code. Without negligence, as used in the statute, means the exercise of reasonable care and diligence on the part of the company, to avoid as far as practicable, injury to property along the line of its road; that is to say, by having its engines properly constructed and in good condition, and placed in the charge of skilful and prudent persons, and managed by such persons in a skilful and prudent manner; and in keeping its road-bed in proper condition by preventing the negligent accumulation of combustible material. But a company is not obliged to keep men stationed along the line of its road, either to guard against or to extinguish fires which may happen. With trains passing almost at every hour on many roads, and with a rapidity unknown to any other power, it would be utterly impracticable to keep men stationed at every point where a fire may occur. To impose such a duty would not only be unreasonable in itself, but it would in fact make railroad companies insurers against loss by fire, of all the property along the line of their roads. The proof thus offered, was calculated to mislead the jury, by leaving them to infer that the absence of the hands employed for the purpose of repairs on the section of the road where the fire occurred, and the failure on their part to assist in extinguishing the same, was evidence of negligence on the part of the defendant.

The Court erred also we think, in refusing to strike out so much of the testimony of the witnesses Rice and Salmon, in regard to the valuation of the property destroyed, as was based upon the representations of other persons, and not upon their own knowledge. These witnesses had testified in regard to an appraisement of the property, made by them previous to the trial, but upon cross-examination it turned out, they had no personal knowledge as to part of the property included in the appraisement, and that their valuation in respect to the same, was based entirely upon the representations of other persons. We know of no rule of evidence which permits a witness to testify in regard to the value of property, based upon the mere hearsay declarations of...