Dyer v. Maine Cent. R. Co.

• Decision Date: 27 August 1904
• Citation: 58 A. 994,99 Me. 195
• Parties: DYER v. MAINE CENT. R. CO.
• Court: Maine Supreme Court

58 A. 994

99 Me. 195

DYER

v. MAINE CENT. R. CO.

Supreme Judicial Court of Maine.

Aug. 27, 1904.

(Official.)

Report from Supreme Judicial Court, Cumberland County.

Action by Thomas Dyer against the Maine Central Railroad Company. On case reported. Judgment for plaintiff.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, POWERS, PEABODY, SPEAR, and EMERY, JJ.

Clifford, Verrlll & Clifford, for plaintiff.

Nathan & Henry B. Cleaves and Stephen C. Perry, for defendant.

POWERS, J. This is an action at common law, brought for the benefit of the Liverpool, London & Globe Insurance Company, to recover the amount of insurance paid by it to the plaintiff upon his buildings in Freeport, alleged to have been destroyed by fire communicated by sparks escaping from the locomotive engine of the defendant, through its negligence in the construction, equipment, management, and operation of the same. The defendant has already paid to the plaintiff the full amount for which it is liable under Rev. St. 1883, c. 51, § 64, as amended by chapter 79, p. 77, Pub. Laws 1895, and insists that it is uuder no further liability. That statute is as follows: "When a building or other property is injured by tire communicated by a locomotive engine, the corporation using it is responsible for such injury, and it has an insurable interest in the property along the route, for which it is responsible, and may procure insurance thereon. But such corporation shall be entitled to the benefit of any insurance upon such property effected by the owner thereof less the premium and expense of recovery. The insurance shall be deducted from the damages, if recovered before the damages are assessed, or, if not, the policy shall be assigned to such corporation, which may maintain an action thereon, or prosecute, at its own expense, any action already commenced by the insured, in either case with all the rights which the insured originally had."

Independently of any statute, and prior to the enactment of chapter 9, § 5, p. 6, Laws 1842, the owner of property had the right at common law to recover damages sustained by fire communicated from a locomotive engine through the negligence of the railroad company using it. The act of 1842, which continued unchanged until 1895, broadened the liability of a railroad company, so that it was made to embrace all cases of fire communicated from its locomotive engine. It was no longer necessary to allege and prove negligence in the use of the engine, and the statute in effect made the railroad company an insurer. If the property damaged was insured, the insurance company was entitled to subrogation. In such case, the owner might collect of either party that he saw fit. If from the insurance company first, then that fact constituted no defense for the railroad company, and any sum collected by him in excess of what was necessary, with the insurance, to compensate him for his full loss, he held in trust for the insurance company. If, on the other hand, he collected from the railroad first, he thereby diminished to the same extent his claim against the insurance company. Both were insurers, the insurance company by virtue of its voluntary contract, and the railroad company by force of the statute which imposed the liability upon it. The liability of the railroad company was, however, primary, and that of the insurance company secondary, not in point of time, but in point of ultimate liability. Hart v. Western R. R., 13 Metc. 99, 46 Am. Dec. 719.

In this state of the law the statute was amended by chapter 79, p. 77, Pub. Laws 1895, giving to the railroad the benefit of any insurance upon the property, and providing that the insurance should be deducted from the damages if recovered before they were assessed, or, if not, that the policy should be assigned to the railroad corporation, which might then maintain an action thereon with all the rights of the insured. This amendment bad special and particular reference to the adjustment of the liability of the two insurers—the insurance company and the railroad company—in those cases falling under the section which was amended, and in which it was necessary for the owner to invoke the statutory liability of the defendant corporation in order to recover against it. The Legislature might well deem it just that, as between the voluntary insurer by contract and the one who, without fault on its part, is made such by law, the latter should have the preference. To go further and say that in a case where the railroad company is liable because of its own fault and negligence, and not as an insurer, it should have the benefit of any insurance effected by the owner upon such property, would be a manifest injustice. The consequence of the defendant's negligence would then fall, not upon itself, but upon the insurance company; not upon the guilty, but upon the innocent. We cannot believe that a result so repugnant to justice could have been within the legislative intention. This action, therefore, may be maintained notwithstanding the amendment of 1895. That act is limited in its application to those cases in which the section amended makes the railroad company an insurer; in other words, to those cases in which the liability of the defendant is created by that section, and not by its own negligent act.

The result here reached is not in conflict with Leavitt v. C. P. Ry. Co., 90 Me. 153, 37 Atl. 886, 38 L. R. A. 152. In that case it was admitted that fire was communicated without fault or negligence on the part of the defendant, thus clearly presenting a state of facts under which the railroad was chargeable, not at common law, but solely because of its statutory liability. We are aware, also, that the right of subrogation was denied to the insurance company under a similar statute in Lyons v. Boston & Lowell R. R., 181 Mass. 551, 64 N. E. 404; but that, like Leavitt v. C. P. Ry., supra, appears to have been an action based upon the statutory liability of the defendant, and the questions here decided were not raised or considered.

This case comes before the court upon report, and the defendant contends it is not liable upon the facts. The undisputed facts are that on the date in question the defendant's locomotive engine, sending out an unusual amount of smoke and cinders, passed over its road through the plaintiff's farm, and about 300 feet from his buildings. There was no fire seen before the train passed, but it was discovered shortly after in the grass near the railroad track, extending from the banks of the railroad to the plaintiff's buildings, which it consumed. No attempt is made to account for the fire at this time or place upon any other hypothesis, and we think it is a fair inference that the fire was communicated by sparks from the defendant's locomotive. Gibbons v. Wisconsin Valley R. Co., 66 Wis. 161, 28 N. W. 170; Chicago & A. R. R. Co. v. Esten, 178 Ill. 192, 52 N. E. 954; Smith v. London & S. W. Ry. Co., L R. 5 C. P. 98; 13 Am. & Eng. Ency. Law (2d Ed.) 513.

The plaintiff must still prove that the defendant's negligence was the cause of the fire, and there is no evidence of any negligence on the defendant's part, unless negligence in the construction, equipment, or management of its locomotive engine can be inferred from the fact that the fire was communicated by sparks from it On the question whether that fact alone is sufficient to make out a prima facie case of such negligence, there appears to be an irreconcilable conflict of authority. The most respectable courts, after careful consideration, have arrived at directly contrary conclusions. On the one hand, it has been held that no such presumption arises, because, first, the defendant is carrying on a lawful business in a lawful manner, and, second, that sparks and coals may escape notwithstanding all the safeguards have been adopted which modern science can suggest, and the greatest skill and care are employed in the operation of the engine. On the other hand, we may well presume that the defendant is not running locomotives over its road, the natural and probable effect of which would be to communicate fire to the property along its route if the locomotives were properly equipped and carefully managed, and when fire is so communicated the natural presumption is that it is due to negligence. More than that, such a presumption has its foundation in the necessities of the case. The locomotives of railroad companies by night and day rush with great velocity through the land. They are here to-day, and to-morrow may be hundreds of miles away. They are within the control of the defendant. The method of their equipment and manner of their operation are known to its employés, who are always present with the engine, and evidence touching this subject is easy of production on its part. The owner of the property destroyed has no such opportunities of knowledge. It may be often exceedingly difficult, if not impossible, for him to even identity the engine which has caused the injury, or to obtain the names of those who know about its equipment or its use. He is frequently absent, and, if present at the time and place of the fire, he can obtain but a momentary view of the locomotive. He has no opportunity for inspection, and knows nothing of its equipment and management. He can judge only by the result, and can often obtain no other proof as to whether the injury which he suffers has been caused by negligence. It is similar to those cases in which the burden of proof is cast upon him who best knows the facts. In this state the question is a new one. We are at liberty to adopt that rule which seems to us most consonant with reason and justice, and we think that negligence in the construction, equipment or management of the defendant's locomotive engine may fairly be inferred from the fact that the fire was communicated by sparks from it, and that, there being no evidence or circumstances to rebut that...