First Nat. Bank of Hoopeston v. Lake Erie & W.R. Co.

• Decision Date: 18 June 1898
• Citation: 50 N.E. 1023,174 Ill. 36
• Court: Illinois Supreme Court
• Parties: FIRST NAT. BANK OF HOOPESTON v. LAKE ERIE & W. R. CO.

174 Ill. 36

50 N.E. 1023

FIRST NAT. BANK OF HOOPESTON

v.LAKE ERIE & W. R. CO.

Supreme Court of Illinois.

June 18, 1898.

Appeal from appellate court, Third district.

Action by the First National Bank of Hoopeston against the Lake Erie & Wester Railroad Company. Verdict for defendant. A motion for a new trial was denied, and judgment entered, which was affirmed by the appellate court (65 Ill. App. 21), and plaintiff appeals. Affirmed.W. R. Lawrence, D. J. Schuyler, and C. W. Greenfield, for appellant.

W. J. Calhoun and H. M. Steely, for appellee.

This is a suit, brought on May 31, 1894, by the appellant, the First National Bank of Hoopeston, in Vermilion county, against the appellee railroad company, for the purpose of recovering damages for loss, alleged to have been sustained by the burning of an elevator owned by the appellant, and situated at Hoopeston. The fire which destroyed the elevator is alleged to have been caused by sparks from an engine attached to one of the freight trains of the appellee. The elevator was insured. The insurance companies paid the loss, and this suit is brought by the bank for the use of the insurance companies so paying the loss, who are subrogated to the right of the bank in the cause of action against the railroad company for alleged negligence in so destroying the building. The declaration consists of three counts. The first count charges negligence on the part of the defendant in the equipment and operation of its locomotive. The second count charges that the locomotive was overloaded. The third count alleges common-law negligence in the construction and maintenance of defendant's road with the declivitous grades hereafter referred to. The defendant below (the appellee here) filed a plea of the general issue. The defenses made were-First, that the engine alleged to have caused the injury was properly operated at the time of the injury, and equipped with the latest and best devices for arresting sparks; second, that the engineer operating the locomotive was a skillful and careful man; and, third, that the fire originated in the lower part of the elevator, and was not produced by sparks from the engine. The case was tried before a jury, who returned a verdict in favor of the appellee, the defendant below. Motion for new trial was overruled, and judgment was entered upon the verdict, in favor of the defendant, and against the plaintiff, for costs. This judgment has been affirmed by the appellate court. 65 Ill. App. 21. The present appeal is from such judgment of affirmance.

The facts of the case, out of which the controversy arises, are substantially as follows: The appellee's railroad runs through Hoopeston in an east and west direction. The elevator of the appellant, which was burned, was situated just south of the railroad company's right of way, and upon a lot owned by the appellant. It adjoined the south line of the railroad right of way. About 875 feet east of the east end of the elevator, the Chicago & Eastern Illinois Railroad Company's track, running north and south, crossed the track of the appellee. The appellee's station was located at the crossing made by the two railroads. About 55 feet east of the east end of the elevator, a street, called ‘Second Street,’ crossed appellee's road. Between 800 and 900 feet west of the west end of the elevator stood a water tank beside the appellee's track. For about 1,000 feet east, and a little more than that distance to the west, of the water tank, the track was level. To the west of this level stretch of track there was an ascending grade in the appellee's road. To the east of this level stretch of track there was also an ascending grade in the appellee's road. In consequence of this irregularity in the grade, a train, coming from the west into Hoopeston, would descend towards the water tank, and, after leaving the water tank, and going east, by the elevator, and towards the station, it would ascend. On August 31, 1892, a freight train of the appellee came into Hoopeston from the west, about noon. It passed the elevator, and pulled up the east grade to the station, and there unloaded the way freight. The train was allowed to back down the incline to the level grade, west of the elevator, as far as the water tank. After the locomotive, which had been detached from the train, had been used for about an hour in switching and transferring cars from the track of one railroad to the other, it was again attached to the train standing at the water tank, where water and coal were taken on. The train then started east from the water tank, and passed the elevator up the east grade. When the train was about halfway up the grade, or a short distance east of the railroad crossing, the engine stopped or was stalled near the summit of the hill or grade. The engineer then backed his train down past the elevator west of the water tank, and up to the summit of the grade on the west. A second start was then made from this point, and, with the aid of the momentum acquired in going down the west grade, the engineer took a run for the hill east of the railroad crossing, and succeeded in moving the train up the east grade, and out of the city. A short time after the train passed the elevator going east for the second time, fire was discovered in the north slope of the roof of the elevator, being the side next to the appellee's right of way. The witnesses differed as to the length of time which elapsed after the passing of the train, before the fire was discovered, the time being estimated by the different witnesses all the way from 10 to 30 minutes. The place where the fire was discovered was about 36 or 38 feet up from the ground. The elevator was in operation at the time, but the elevator engine room and stack were on the other side of the building. The weather was warm, and the wind was blowing from the northwest. The elevator was dry, and in an inflammable condition. When the engine passed the elevator, the exhaust was heavy, and it was throwing sparks high in the air. In a few moments the whole building was in flames, and the loss was total. Witnesses for the appellee testified that the locomtive attached to the train was equipped with an appliance or spark arrester, known as ‘netting’ and ‘diaphragm.’ After the plaintiff had introduced its evidence and rested, and after the defendant had introduced its evidence and rested, the plaintiff, upon the rebuttal, asked a witness the following questions: ‘Q. Have you ever, at any time before or since the burning of the elevator in question, seen any fires along the line of the Lake Erie & Western Railroad Company on their right of way, communicated from the engines of the road?’ This question was objected to, and the objection was sustained, and exception was taken. ‘Q. I will ask you if, at any time during the summer or fall of 1892, just prior to or just after this fire, you witnessed other fires along the right of way, or near the property, which has been referred to here in the evidence as Mr. Carrick's warehouse, or in other places in the vicinity of this elevator, along the east grade that has been referred to in the evidence.’ This question was objected to by the defendant. The court then asked of the appellant's counsel the following question, and received the following answer: ‘Q. You do not propose to prove it was the same engine?’ Answer: ‘No, sir.’ The court then stated: ‘The objection will be sustained.’ Exception was taken to this ruling of the court by the plaintiff.

MAGRUDER, J. (after stating the facts).

There is only one question in this case which counsel for appellant press upon our attention, and that question is whether or not the court below erred in refusing to allow appellant to show in rebuttal that other fires had been set by appellee's engines at other times in the immediate vicinity of the elevator both before and after it was destroyed. The engine or locomotive which was alleged to have caused the fire was identified as the engine which drew the freight train passing the elevator near the noon hour of August 31, 1892. It is conceded by counsel for appellant that the testimony was confined to one certain engine of the appellee. In cases of this kind it often happens that the proof does not identify the particular engine which caused the loss, but is confined to negligence in the operation and construction of the engines generally which run on the road. The rule seems to be settled by the weight of authority that when a fire has been caused by sparks from a particular locomotive, which is identified, or by one or the other of two locomotives, ‘evidence of other fires, kindled by different locomotives, before and after the fire complained of, is not admissible.’ 8 Am. & Eng. Enc. Law, p. 9,...