Chicago, St. P., M. & O. Ry. Co. v. Gilbert

• Decision Date: 03 October 1892
• Docket Number: 117.
• Citation: 52 F. 711
• Parties: CHICAGO, ST. P., M. & O. RY. CO. v. GILBERT et al.
• Court: U.S. Court of Appeals — Eighth Circuit

52 F. 711

CHICAGO, ST. P., M. & O. RY. CO. v. GILBERT et al.

No. 117.

United States Court of Appeals, Eighth Circuit.

October 3, 1892

S. L Perrin, (J. H. Howe, on brief,) for plaintiff in error.

T. J Knox and John A. Lovely, for defendants in error.

Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District judge.

SHIRAS District Judge.

On the 23d of May, 1889, a steam flouring mill and barn, with their contents, the property of the defendants in error, situated in the village of Adrian, in the state of Minnesota, in immediate proximity to a line of railway owned and operated by the plaintiff in error, were destroyed by fire. The owners of the burned property brought this action against the railway company for the purpose of recovering the damages caused by the destruction of their property, alleging that the company had negligently placed and suffered to accumulate, upon the right of way and land of the company adjoining the property of the defendants in error combustible material composed of dry grass, weeds, rubbish and the like, and that on said 23d day of May, 1889, the company ran a locomotive by said property which was not properly equipped nor properly handled to prevent the escape of fire, and as a consequence thereof fire was communicated to the combustible material upon the right of way, whence it spread to the mill and barn adjoining, causing their destruction. The company in its answer denied the several acts of negligence alleged against it, and averred that the fire and consequent destruction of the property were due to the negligent and careless manner in which the mill was managed, claiming that the fire escaped from the mill, and not from the locomotive of the company. Upon these issues the case was tried before the court and jury, the trial resulting in a verdict and judgment in favor of the plaintiffs below, the damages being assessed at $15,878.33. To reverse the judgment the railway company brings the case to this court by a writ of error.

It is stated in the brief of counsel for the plaintiff in error that 'the important question in this case raised by the first ten assignments of error is whether the case disclosed by the record can be properly and fairly distinguished from the case of Railway Co. v. Richardson, 91 U.S. 454. ' The assignments of error thus referred to are based upon the admission, over the objection of the company, of the testimony of several witnesses that on different occasions within some weeks prior to May 23, 1891, fire had escaped from the engines of the company in the immediate vicinity of the property subsequently destroyed. In the case just cited the supreme court held such evidence to be admissible, 'as tending to prove the possibility, and a consequent probability, that some locomotive caused the fire, and as tending to show a negligent habit of the officers and agents of the railroad company.'

We do not think counsel for plaintiff in error have successfully distinguished the facts of the two cases. Counsel cite and comment at length on the cases of Gibbons v. Railroad Co., 58 Wis. 335, 17 N.W. 132; Railroad Co. v. Stranahan, 79 Pa.St. 405; Allard v. Railroad Co., (Wis.) 40 N.W. 685; Ireland v. Railroad Co., (Mich.) 44 N.W. 426; and Coale v. Railroad Co., 60 Mo. 227,-- as authorities establishing the distinction that evidence showing the scattering of fire by the engines of the company at other times and places is only admissible when the identity of the particular engine supposed to have set the fire in the case on trial is unknown. We must not, in the consideration of this question, lose sight of the issues involved. In the case at bar it was not admitted by the company that the fire was caused by sparks escaping from a particular engine, in which event the query would be as to the condition of that particular engine and the mode in which it was handled. On the contrary, the parties were at issue as to the origin of the fire, the plaintiffs claiming that it was due to fire escaping from some one of the engines of the company, and the defendant that it was due to fire escaping from the mill itself. Upon this issue it would certainly be open to the defendant to prove that the mill was so run and managed by the plaintiffs that the fire frequently escaped therefrom, and caused the burning of combustible matter in the vicinity of the mills, because such evidence would tend to support the claim of the defendant that the fire was started by sparks or live coals coming from the mill. In like manner it was, upon this issue of the origin of the fire, open to plaintiffs to prove that the engines of the company did permit the escape of sparks, causing other fires, as a fact tending to show that this particular fire thus originated.

This action was brought under the provisions of section 60, c. 34, Gen. St. Minn., which enacts that:

'All railroad companies or corporations operating or running cars or steam engines over roads in this state shall be liable to any party aggrieved for all damage caused by fire being scattered or thrown from said cars or engines, without the owner or owners of the property so damaged being required to show defect in their engines, or negligence on the part of their employes; but the fact of such fire being scattered or thrown shall be construed by all courts having jurisdiction as prima facie evidence of such negligence or defect. * * * '

Under the provisions of this section, to obtain the benefit of the prima facie case therein provided for, it is necessary for the plaintiffs to prove that the conflagration complained of resulted from fire scattered or thrown from the cars of the railway...