Byers v. Baltimore & Ohio Railroad Co.

• Decision Date: 04 January 1909
• Docket Number: 128
• Citation: 72 A. 245,222 Pa. 547
• Parties: Byers v. Baltimore & Ohio Railroad Company, Appellant
• Court: Pennsylvania Supreme Court

72 A. 245

222 Pa. 547

Byers v. Baltimore & Ohio Railroad Company, Appellant

No. 128

Supreme Court of Pennsylvania

January 4, 1909

Argued October 13, 1908

Appeal, No. 128, Oct. T., 1908, by defendant, from judgment of C.P. Lawrence Co., Dec. T., 1905, No. 95, on verdict for plaintiff in case of Horace D. Byers v. Baltimore & Ohio Railroad Company. Affirmed.

Trespass to recover damages for destruction of plaintiff's barn by fire alleged to have been caused by sparks escaping from a locomotive. Before WILLIAM E. PORTER, P.J.

At the trial plaintiff was asked this question:

"Q. State whether or not you observed the netting called the spark arrester? A. I did. Q. What condition was it in?"

Objected to by defendant's counsel because this alleged examination occurred two or three days after the alleged damages occurred and it is incompetent to show its condition on the day of the alleged injury.

Plaintiff's counsel proposed to show by this witness that he watched for this engine until it returned to the terminal at New Castle Junction and before it made another trip he examined it, and that the spark arrester had been patched and repaired and the patch was new, and that the engine had not been used from the time it was patched until witness saw it. This for the purpose of showing that the spark arrester was in bad condition at the time of the fire at the plaintiff's buildings.

Defendant's counsel object as incompetent and for the reason that the witness has not yet testified that the engine had not made another run before this alleged examination was made.

The Court: It might not be positive evidence, but it would be some evidence as to the condition the engine was in.

Mr McCaslin: If the witness knows that the engine was not out after the run of January 17.

Mr Aiken: We propose to show that by the condition the patch was in.

The Court: We will allow the witness to answer and seal an exception for the defendant. [1]

"A. I went down on that morning, had the front opened and noticed that the bolts and the box of this front end had been open, because the threads were bright and we got the door opened and seen the front end and it was in good condition when I looked at it."

J. B. Daugherty, a witness for defendant, was asked on crossexamination this question:

"Q. I show you now three cinders, being exhibit 'A,' among which is one testified to by the plaintiff that as the engine passed his premises it struck the porch and was hot and that he afterwards picked it up and it is included among the three. I therefore ask you whether the smallest of those three cinders could pass through the netting of a Mulfeld spark arrester that was in good condition on January 17, 1905."

Objected to by defendant's counsel for the reason that the plaintiff did not testify that the spark was hot, and for the further reason that the cinders in question have been excluded from the evidence by the court. Further, that the plaintiff has not identified any one of those cinders as the one which he claims dropped on his property at the time when the train passed.

The Court: The witness may answer the question and an exception is sealed for the defendant. [2]

"A. No, sir, it couldn't."

M. S. Parker was asked this question on cross-examination:

"Q. I now show you three cinders or coals marked exhibit 'A,' one of the cinders being the one that the plaintiff noticed rolling on his porch as the train passed by his premises, and I ask you whether the smallest of those coal cinders could pass through the netting of that spark arrester on engine 1367, if the spark arrester was in good condition?"

Objected to as improper cross-examination on the evidence in this case.

The Court: The witness may answer and an exception sealed for the defendant. [3]

"A. No, sir."

Defendant presented this point:

9. Under all the evidence in this case the verdict of the jury should be for the defendant. Answer: The ninth point is refused, so we will not read it to the jury. [4]

Plaintiff presented these points:

3. If the jury find from the evidence in this case that the defendant's locomotive No. 1367 passed along the plaintiff's premises a few minutes before the discovery of the fire and that said locomotive was emitting sparks as large as a hulled hickory nut, which were seen in the air and smoke at a height of from fifty to sixty feet, and if they also find that there were cinders from said locomotive that were larger than would pass through a spark arrester in good condition that was carried as far distant as the house which was as far distant as the barn from the railroad, and if the jury so find they would also be warranted in finding that the spark arrester in locomotive No. 1367 of the defendant company was deficient and not in good repair and that the defendant company was thereby negligent and that the barn of the plaintiff was set on fire by the sparks emitted from said locomotive. Answer: We cannot approve or affirm this point as stated, but with a very slight change we can affirm it and we will read the point and affirm it as we believe the law to be:

If the jury find from the evidence in this case that the defendant's locomotive No. 1367 passed along the plaintiff's premises a few minutes before the discovery of the fire, and that said locomotive was emitting sparks as large as a hulled hickory nut which were seen in the air and smoke at a height of from fifty to sixty feet, and if they also find that there were cinders from said locomotive that were larger than would pass through a spark arrester in good condition that were carried as far distant as the barn from the railroad, the jury would also be warranted in finding that the spark arrester in locomotive No. 1367 of the defendant company was deficient and not in good repair and that the defendant company was thereby negligent and that the barn of the plaintiff was set on fire by the sparks emitted from said locomotive. As thus stated we affirm the point. [5]

4. The evidence in this case is that the barn and the house were on the same side of the railroad, each equally distant not to exceed 237 feet from the railroad track of the defendant company, and the house being about 100 feet from the barn, and if the jury find that locomotive No. 1367 of the defendant company as it passed along the plaintiff's premises a few minutes before the fire was discovered, emitted sparks and cinders of a larger size than would pass through a spark arrester in good condition, from the smokestack of the locomotive, and some of them were carried as far distant as the house, the jury would be warranted in finding that the spark arrester of the defendant's locomotive No. 1367, was not in good condition and that the defendant company was guilty of negligence and under all the evidence the jury may find that the plaintiff's barn was burned by the sparks emitted from the defendant's said locomotive. Answer: Affirmed. [6]

Verdict and judgment for plaintiff for $2,000. Defendant appealed.

Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions; (4-6) above instructions, quoting them.

The assignments of error are all overruled, and the judgment is affirmed.

Wylie McCaslin, with him U. G. DeFord, for appellant. -- It cannot be held that the fact that a fire took place in the immediate vicinity of the railroad shortly after the passing of an engine is prima facie evidence of negligence and therefore the case should be submitted to the jury: Jennings v. Penna. R.R. Co., 93 Pa. 337; Reading, etc., R.R. Co. v. Latshaw, 93 Pa. 449; Taylor v. Pa. Schuylkill Valley R.R. Co., 174 Pa. 171.

It devolves upon the plaintiff to prove by the preponderance of the evidence that the fire was communicated by sparks or cinders from the railway engines: Henderson v. Railroad Co., 144 Pa. 461.

In the case of mere negligence with no malice, to ascertain whether the negligence be the proximate cause of the injury, it must appear that the injury was the natural and probable consequence of the negligence: Yoders v. Amwell Twp., 172 Pa. 447; Scott v. Allegheny Valley R.R. Co., 172 Pa. 646.

Robert K. Aiken, with him J. Clyde Gilfillian, for appellee. -- Under all the evidence in this case it was clearly one for the jury: Henderson v. Railroad Co., 144 Pa. 461; Huyett v. Railroad Co., 23 Pa. 373; Penna. Co. v. Watson, 81 * Pa. 293; Van Steuben v. Cent. R.R. Co., 178 Pa. 367; Matthews v. Railroad Co., 18 Pa.Super. 10; Thomas v. Railroad Co., 182 Pa. 538; Howard Express Co. v. Wile, 64 Pa. 201; Citizens' Pass. Ry. Co. v. Foxley, 107 Pa. 537; McCafferty v. Railroad Co., 193 Pa. 339.

It is the duty of companies to control their engines carefully, to adopt every known safeguard and to avail themselves from time to time of every approved invention to lessen their danger: Frankford, etc., Turnpike Co. v. Phila. & Trenton R.R. Co., 54 Pa. 345; Lehigh Valley R.R. Co. v. McKeen, 90 Pa. 122.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE POTTER:

Plaintiff in this case is the owner of a farm adjoining the...