Director General of Railroad v. Johnston
| Decision Date | 14 June 1921 |
| Citation | 31 Del. 397,114 A. 759 |
| Court | United States State Supreme Court of Delaware |
| Parties | THE DIRECTOR GENERAL OF RAILROADS, defendant below, plaintiff in error, v. TILGHMAN JOHNSTON and WALTER BLACKSON, trustees under the last will and testament of William Gouverneur Ramsey, deceased, plaintiffs below, defendants in error |
Supreme Court, January Term, 1921.
Error to Superior Court, New Castle County, No-- October term 1920.
See case below, 7 Boyce, 565, 109 A. 581.
Action by Tilghman Johnston et al., trustees, etc., against the Director General of Railroads. Verdict for plaintiffs. Judgment entered on verdict affirmed.
This was an action brought by the plaintiffs below to recover damages for the loss of their barn and contents, alleged to have been caused by the negligence of the defendant. The negligence charged in the courts of the declaration, not adandoned, and the pertinent facts proved, are stated in the opinion of the court.
ASSIGNMENTS OF ERROR.
The the court below erred:
1. In refusing to instruct the jury at the close of all the testimony taken in the case to find a verdict for the defendant in accordance with the defendant's first prayer.
2. In not charging the jury, as requested in the third prayer of the defendant:
"That even if the plaintiffs established the fact the fire was caused by a spark from defendant's engine, still if they failed to show any satisfactory proof that the firing and destruction of the barn resulted from the carelessness or negligence of the defendant they could not recover in this action."
--or such modification of the language of said prayer as would embody the proposition of law therein contained without charging upon the facts in the case before them.
3. In refusing to instruct the jury, as requested in the fourth prayer of the defendant:
"That the defendant is not answerable under all circumstances or at all events, but is only answerable for their own fault; that is, for want of due care, skill, or diligence, in the transaction of their business and in the use of their engines in it to prevent such accidents."
4. In refusing to instruct the jury, as requested in the sixth prayer of the defendant:
"That the defendant had an unquestionable right to operate the railroad by engines propelled by steam generated by fire."
5. In refusing to instruct the jury, as requested in the seventh prayer of defendant:
"That if the defendant used due care and caution in the running of its engines, and yet unfortunately the barn of the plaintiff was set on fire by sparks emitted from its engine and destroyed, the plaintiffs would not be entitled to recover for the loss sustained by them, because the defendant under such circumstances would be without fault."
6. In refusing to instruct the jury, as requested in the eighth prayer of the defendant:
"If the defendant had in use on its locomotives fire appliances and machinery then in general use for the prevention of the escape of sparks and coals of fire, and the plaintiffs do not show that it has been negligent in other particulars, there would be no liability and the plaintiffs cannot recover in this action."
7. In refusing to instruct the jury, as requested in the ninth prayer of defendant:
"A railroad company is not bound to adopt any particular kind of appliances or machinery for the prevention of fires, and it cannot be held guilty of negligence for failing to adopt a different kind or pattern of appliances than that which it has adopted, if it has exercised reasonable care in the selection, and the latter is approved and in general use, and if the company has taken every precaution and secured approved machinery in general use it has done all that lies in its power to do, consistent with the operation of the road, and is therefore not liable for a purely accidental fire."
8. In refusing to instruct the jury, as requested in the eleventh prayer of the defendant:
"Where the presumption of negligent construction or operation arises from the fact that the fire was set by defendant's locomotive, when the presumption thus arising is repelled and rebutted, by proof or proper construction and use of proper appliances and careful management and operation, the plaintiffs cannot recover without producing proof of actual negligence or want of ordinary care."
9. In refusing to instruct the jury, as requested in the twelfth prayer of the defendant:
"The fact that a fire occurs is no evidence of itself of negligence on the part of the defendant."
10. In instructing the jury as follows:
"Whether the alleged firing of plaintiff's property resulted from the alleged acts of negligence of the defendant company, or any of them, may be shown by either direct or circumstantial evidence."
11. In refusing the motion of the defendant to dismiss the array of jurors drawn especially to try said cause.
12 Abandoned.
13. The court below admitted improper testimony on behalf of the plaintiffs, in that in the direct examination of Walter Washington the court admitted the following testimony.
Q. What can you say with regard to other fires which have occurred along the right of way?
A. Well, I seen--.
Mr Huxley (interrupting the witness). I object. He has identified a train passing 15 minutes before this fire, and, unless he can identify other fires caused by the engine equipped such as this engine, it is inadmissible.
We overrule the objection.
(Exception noted for the defendant.)
A. Several of them.
Q. During the period of four years?
A. Yes, sir.
Q. How many of them?
A. Well, I would say about 10; maybe more; I couldn't say.
Q. What has caused those fires, if you know?
A. Well, right after a freight passed they caught on fire.
A. I saw a few along there.
Q. Have you ever seen any fires near the barn?
A. Yes, sir. I helped to put out one right near the barn.
Q. How close to the barn was the one you helped to put out?
A. It was within five or six feet of the barn.
Q. When did that happen?
A. I guess it was around three years ago.
Q. Do you know what caused the fire?
A. I couldn't say for sure.
Q. Did you see anything that might have caused it?
A. No, sir. I didn't see anything around there.
Q. Do you know whether a train had passed before that fire was seen?
A. There was a train passed about an hour, or maybe more, before.
Q. These other fires you speak of --do you know what caused those fires?
A. No; I couldn't say for sure.
Q. Did you see anything that might have caused them?
A. No, sir.
Q. Were those fires on the right of way; that is, between the fences or on the fields, or where?
A. I seen one in the field, and helped to put it out.
Q. On Mr. Wilson's side?
A. No; on our side; in the cornfield.
Q. About how far did that start from the right of way?
A. I would say about 30 feet.
Q. It did not start on the railroad proper but started over in the field?
A. Over in the field.
Q. Was there anybody in the field at that time?
A. I didn't see no one.
Q. Where did the fire start in the field?
A. In the grass. Burnt the grass and the corn shocks.
Q. Have you seen these freight trains passing along there at night?
A. Yes, sir.
(Exception noted for defendant.)
A. Well, I seen a lot of sparks flying from them.
Q. Most of the trains that pass there at night, a few of them?
A. Most all I seen. Of course, I don't see them all when they pass there, but when I am out I can see them.
14. That the court below erred in that in the direct examination of Jacob T. Hedrick, a witness produced on the part of the plaintiffs, it admitted the following evidence:
Q. During the time you have worked on the farm, have you ever noticed any fires on the farm, caused by sparks from locomotives running along there?
Mr. Huxley: I want to offer the same objection.
We overrule the objection.
(Exception noted for the defendant.)
A. I couldn't say whether it was on account of the engines or not. I have seen fires along the right of way there and in the fields.
Q. How many fires have you seen in the fields during the time you have worked there?
A. Well, I helped to put out three in my recollection.
Q. And where did you see those fires?
A. They would start along the fence along the right of way, and run over into the filed.
Q. Just prior to the time when these fires started, did you ever see locomotives running along there?
A. Yes, sir.
Q. Did these fires, as a matter of fact, start very shortly after the trains went along?
A. Yes, sir.
Q. When you saw these fires, was there anybody else around in the neighborhood?
A. I didn't see anybody, no, sir.
Q. Was there anything you saw which might have caused the fire other than the locomotive?
A. No, sir.
Q. You say you saw some fires in the fields?
A. Yes, sir.
Q. How far from the railroad track?
A. I seen one in the cornfield which run out in the field I suppose about 30 feet from the fence along the track, and the track, of course, is back from the fence about twenty feet, I judge; something like that.
15. That the court below erred in that in the direct examination of Eby W. Cordrey, a witness produced on the part of the plaintiffs, it admitted the following evidence:
Q. During the time you worked on this place, have you seen fires on the farm along this right of way?
A. Yes, sir.
Mr. Huxley: I want to offer the same objection.
The objection is overruled.
(Exception noted for the defendant.)
Q. About how many fires have you noticed since you have been working there?
A. I suppose ten or a...
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