Diamond v. Northern P. R. Co.

• Decision Date: 02 February 1887
• Citation: 13 P. 367,6 Mont. 580
• Parties: DIAMOND v. NORTHERN PAC. R. Co.
• Court: Montana Supreme Court

13 P. 367

6 Mont. 580

DIAMOND v. NORTHERN PAC. R. Co.

Supreme Court of Montana

February 2, 1887

Appeal from First district, Custer county.

Wilbur F. Sanders, for appellant.

Andrew F. Burligh, for respondent.

WADE C.J.

In this action the respondent seeks to recover damages for the loss by fire of certain young trees, timber, buildings, fences hay, and other property, described in his complaint, which fire he alleges was occasioned by the negligence of the appellant in not keeping its track and right of way, which passes near to the premises of the respondent, free from dead grass, weeds, and other combustible materials, and in not providing suitable spark arresters, and other machinery, in operating its road, and by negligence and carelessness of its officers in managing the same. There was a general verdict in favor of the respondent, and with it the jury returned certain special issues which had been submitted, and which are as follows: "(1) How did the fire complained of by plaintiff originate? Answer. By fire from some train belonging to the defendant. (2) If you find that the fire came from the railroad, by what train was the same started? A Said fire was started by a train which passed over the railroad of the defendant, adjacent to the property of the plaintiff, about the hour of 2 o'clock P. M. on August 11, A. D. 1882. (3) Did the fire originate from any fault or neglect on the part of the railroad company, and, if so, in what did such negligence consist? A. Yes; by failing to keep its right of way free from dead grass. (4) Was there sufficient grass on defendant's right of way or dry weeds and other combustible material, to make it apparent to a person of ordinary prudence that there was danger of fire therefrom in the neighborhood of plaintiff's ranch? A. There was. (5) Did the failure of plaintiff to remove dry grass, or other combustible material, on his own premises, contribute in any degree to his loss? A. It did not."

There was no exception or objection to the testimony introduced before the jury, and upon which the foregoing findings and special issues were based, except the following: The witness Mrs. Earnest was asked the following question: "If you know, you may state whether or not you knew of other fires occurring on the line of defendant's road in the vicinity of Mr. Diamond's ranch about the time, or within a week or two, of the fire in question, caused by sparks from different locomotives," --to which there was an objection by defendant, overruled, and an exception taken and the witness answered as follows: "Yes. Yes; I saw sparks coming out of the smoke-stacks, and, after the train passed, I saw smoke. I saw hay burn once before the time of the fire at Diamond's ranch." And the following, to another witness: "Do you know anything about the trains passing over that road about the first day of August?" to which there was an objection by defendant, overruled, and an exception, and the witness answered as follows: "I know of trains passing over defendant's road about the first day of August, by which fire was scattered. This was not at the Diamond place, but this side, and a mile or two from Diamond's. I know of three times that fires were set by passing trains,--two on the hill, and one this side of it."

As to the competency of this class of evidence, Mr. Thompson, in his valuable work on Negligence, says: "The business of running railroad trains suggests a unity of management, and a general similarity in the construction, of the engines. For this reason, and on account of the difficulty of proving negligence in these cases, as before pointed out, the admission of evidence as to other and distinct fires from the one alleged to have caused the injury is permitted. This rule is adopted in England, and prevails in all the states, with one, or possibly two, exceptions. More particularly, it may be stated as follows: That, in actions for damages caused by the negligent escape of fire from locomotive engines, it is competent for the plaintiff to show that, about the time when the fire in question happened, the trains which the company were running past the location of the fire were so managed in respect to their furnaces as to be likely to set on fire objects in the position of the property burned, or to show the emission of sparks or ignited matter from other engines of the defendant passing the spot, upon other occasions, either before or after the damages occurred, without showing that they were under the charge of the same driver, or were of the same construction, as the one occasioning the damage. *** Evidence of this character is admitted for two purposes: First to show the cause of the injury; second, to show negligence in the construction or working of the particular engine which caused the damage." Thomp. Neg. 159, and cases cited.

If, within a reasonable time before or after the fire in question, other fires had occurred in a similar manner, these would be circumstances tending, in some degree, to show either carelessness and negligence in the management of the engines, or that they were not properly constructed; and such other fires would show a want of vigilance on the part of the company.

In the case of Longabaugh v. Virginia, etc., R. Co., 9 Nev. 271, the court says: "What are the facts in the case? Plaintiff's wood caught fire in some manner to him, at the time, unknown. How did the fire originate? This was the first question to be established in the line of proof. Positive testimony could not be found. The plaintiff was compelled, from the necessities of the case, to rely upon circumstantial evidence. What does he do? He first shows, as in the New York case, the improbabilities of the fire having originated in any other way except from coals dropping from the defendant's engines. He then shows the presence, in the wood-yard, of one of the engines of defendant, within half an hour prior to the breaking out of the fire.

Then proves that fires have been set in the same wood-yard, within a few weeks prior to this time, from sparks emitted from defendant's locomotives. I think such testimony was clearly admissible, under the particular facts in this case, upon the weight of reason as well as of authorities. *** Upon the question of negligence, it was admissible, as tending to prove that if the engines were, as claimed by defendants, properly constructed, and supplied with the best of appliances in general use, they could not have been properly managed, else the fires would not have occurred." Proof of fires, covering a period of four years, was admitted in that case; and the following language, in the case of Field v. New York. etc., R. Co., 32 N.Y. 339, was cited and approved: "The more frequent these occurrences, and the longer time they have been apparent, the greater the negligence of the defendant; and such proof would disarm the defendant of the excuse that, on the particular occasion, the dropping of the fire was an unavoidable accident."

In the case of Grand Trunk Ry. Co. v. Richardson, ^[1] the supreme court of the United States holds the same doctrine. In that case the plaintiff was allowed to prove that, at various times during the same summer, before the fire occurred, some of the defendant's locomotives scattered fire when going past the property destroyed, without showing that either of the locomotives which it is claimed caused the fire was among the number, and without showing that the former locomotives were similar in their make, state of repair, or management to the latter ones. The court, by Mr. Justice STRONG, said: "The question, therefore, is whether it tended in any degree to show that the burning of the bridge, and the consequent destruction of the plaintiff's property, was caused by any of the defendant's locomotives. The question has been often considered by the courts in this country and in England, and such evidence has, we think, been generally held admissible, as tending to prove the possibility, and 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. There are, it is true, some cases that seem to assert the opposite rule. It is, of course, indirect evidence, if it be evidence at all. In this case it was proved that engines run by these defendants had crossed the bridge not long before it took fire. The particular engines were not identified, but their crossing, at least, raised some probability, in the absence of proof of any other known cause, that they caused the fire. And it seems to us that, under the circumstances, the probability was strengthened by the fact that some engines of the same defendants, at other times, during the same season, had scattered fire during their passage;" citing Piggot v. Railroad Co., 3 Man., G. & S. 229; Sheldon v. Railroad Co., 14 N.Y. 218; Field v. Railroad Co., 32 N.Y. 339; Webb v. Railroad Co., 49 N.Y. 420; Cleaveland v. Railroad Co., 42 Vt. 449; Railroad Co. v. McClelland, 42 Ill. 358; Smith v. Railroad Co., L. R. 6 C. P. 22.

In Shearman & Redfield on Negligence, p. 491, it is said: "Evidence that sparks and burning coal were frequently dropped by engines passing on the same road, upon previous occasions, is relevant and competent to show habitual negligence, and to make it probable that the plaintiff's injury proceeded from the same quarter."

In Atchison, etc., R. Co. v. Stanford, 12 Kan. 354, it is said: "The engines are all alike to him. He does not know them apart, nor does he know when any particular engine is used, or who manages it; and, when it passes at the rate of fifteen or twenty miles an hour, he could not see enough of it to afterwards identify it. What the engine is, and how it is managed, is...