Chicago & A.R. Co. v. Esten

• Decision Date: 17 February 1899
• Court: Illinois Supreme Court
• Parties: CHICAGO & A. R. CO. v. ESTEN.

178 Ill. 192

52 N.E. 954

CHICAGO & A. R. CO.

v.ESTEN.

Supreme Court of Illinois.

Feb. 17, 1899.

Appeal from appellate court, Third district.

Action by Emma Esten against the Chicago & Alton Railroad Company. From a judgment of the appellate court affirming a judgment for plaintiff (78 Ill. App. 326), defendant appeals. Affirmed.Blinn & Harris, for appellant.

Beach & Hodnett, for appellee.

CARTWRIGHT, J.

Appellant's railroad runs north and south through Lawndale, in Logan county, where it has a main track, and two side tracks west of it. Between 9 and 10 o'clock on the night of November 4, 1895, an unused elevator adjoining the west side track took fire and was burned, and from it fire was communicated to two buildings and outbuildings of appellee across the street, and about 300 feet northwest from the elevator. There was a two-story building, with merchandise stored in the upper story, a cob house, and a tenant house, which were destroyed, with the fences, walks, and trees. She lived in a house 14 feet east from the main track, opposite the elevator, and about 40 feet from it, and that property was damaged by the fire. She brought this suit against appellant to recover for her loss, and there was a verdict for $1,500, followed by a judgment. The appellate court has affirmed the judgment.

At the conclusion of the evidence the defendant asked the court to give an instruction directing a verdict of not guilty, but the court refused to give it. It is argued that the court was in error in such refusal, because there was a total absence of evidence of the origin of the fire. No one saw what caused the fire, and no witness knew from personal knowledge that it was communicated from the defendant's engines to the elevator. The only means of determining the agency which caused it consisted in the surrounding circumstances, and the evidence tending to charge defendant with causing it was that two of its freight trains passed through Lawndale within a few minutes of each other, just before the fire was discovered; that the elevator was closed and locked, and there had been no fire in it, and no way by which the fire could have originated in the building; that there was a high wind blowing from the southeast, which would carry fire or sparks from the track to the elevator; that the engine on one of the trains was emitting some sparks as it passed through Lawndale; that, just after the second train had passed, the elevator was seen to be on fire, in what is called the ‘dog house,’-a sort of cupola on top of the building; and that the appearances indicated that it took fire from the outside. There was no evidence of any other agency which could have caused the fire, and no other source is pointed out by counsel, except that it might have been communicated from the plaintiff's house on the opposite side of the tracks. It is true that the evidence shows that the house was there, but there was no evidence that there was any fire in it. The plaintiff, who lived there, had gone to bed, and had been in bed for an hour; and the only thing from which counsel think an inference that there was a fire in the house might be drawn is the time of year, November 4th, when we might presume the weather was cold. We think it clear that such fact, under the circumstances, had no tendency to prove that there was a fire burning in the house which might have been communicated to the elevator. The evidence tended to prove...