Fodey v. Northern Pac. Ry. Co.

• Decision Date: 26 April 1912
• Parties: JOHN L. FODEY, Respondent, v. NORTHERN PACIFIC RAILWAY COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

123 P. 835

21 Idaho 713

JOHN L. FODEY, Respondent, v. NORTHERN PACIFIC RAILWAY COMPANY, a Corporation, Appellant

Supreme Court of Idaho

April 26, 1912

RAILROADS-NEGLIGENCE-SETTING FIRES-PRIMA FACIE CASE - WITHDRAWING QUESTIONS OF NEGLIGENCE FROM JURY-SETTING OTHER FIRES-EQUIPMENT OF ENGINES-BURDEN OF PROOF - SPECIAL INTERROGATORIES TO JURY.

(Syllabus by the court.)

1. In an action to recover damages for loss by fire by reason of the negligence of a railway company in its equipment and operation of its engines drawing trains over its right of way, where the evidence shows that the fire which caused the damage came from sparks of the railway company's engines such evidence proves a prima facie case and negligence is presumed, and the evidence is sufficient to entitle the plaintiff to recover for negligence on the part of the railway company in its equipment and operation of its engines, and such proof being made the burden then shifts to the defendant to rebut this presumption of negligence.

2. In an action where damages are sought to be recovered on account of negligence of a railway company in operating its trains and because of such negligence sparks are emitted from its engines and fires are ignited and property destroyed and damages result therefrom, the plaintiff is entitled to recover when such facts are shown, in the absence of clear and satisfactory evidence on the part of the railway company showing the absence of negligence, and such evidence on the part of the plaintiff may be circumstantial or direct evidence.

3. In such cases it is not error for the trial court to refuse to withdraw questions of negligence from the consideration of the jury or to instruct a verdict for the defendant, unless the facts are undisputed or are so conclusively proven that the court, in view of the verdict of the jury, would feel that it is a duty to grant a new trial, if the case were submitted to the jury and a verdict rendered in favor of the plaintiff.

4. Where an action is brought to recover damages, and such damages are alleged to have been caused by the negligence of the railway company in failing to equip its engines with proper spark-arresters and devices to prevent the scattering of fire, and in failing to keep such engines in proper repair, and by negligence in the opera- tion of its trains, where the plaintiff's proof shows facts and circumstances which clearly show that the fire was set by sparks from the railway company's engines, then it will be presumed that the negligence of the railway company arose and the railway company was then required to negative every fact proven by the plaintiff which inferred and gave rise to the presumption of negligence, and such proof should be of such character and degree as to make the defendant's case clear and satisfactory that there was no negligence, and must negative every act on the part of the company which would constitute negligence, and where the evidence as a whole may cause different persons to form different conclusions as to whether or not there was negligence, the question of negligence should be submitted to the jury.

5. Where the evidence shows that a certain engine which passed the point where the fire started was properly equipped and provided with appliances to prevent the emitting of sparks and the evidence also shows that another train also passed the point where the fire was started within a short time before the fire, and there is no evidence which tended in any way to show that the latter engine was skillfully handled or properly equipped, and the evidence does not show the kind of fuel used by either engine, and there is evidence which shows that difference in fuel makes a difference in the quantity and nature of sparks thrown by the engine, and that an engine might be equipped with the best spark-arrester, and with one kind of fuel would throw sparks and pieces of live coal out on the ground, and with another kind of coal sparks would not be emitted, such evidence presents a question of negligence which would be determined by the jury.

6. Where the proof shows that a railroad company has used a right of way and operated trains over the track on the same for many years, and has fenced the same, and there is no evidence in rebuttal of such facts, the evidence is sufficient to show the company has control of such right of way to the extent that it is responsible for negligence in permitting combustible material to accumulate upon such right of way and which becomes ignited from sparks from its engines, and such fire spreads to property outside of said right of way which is thereby damaged.

7. In an action to recover damages alleged to have been caused by fire from sparks emitted from engines of a railway company and negligence on the part of the company is alleged on account of combustible material accumulating on its right of way near where the fire occurred, and negligence in equipment and operation, it is proper to receive proof offered by the plaintiff of other fires set by other engines of the railway company in the vicinity of the fire complained of, and which occurred at or about the same time as the fire involved in the suit, as tending to show a possibility and consequent probability that the fire complained of originated from the same cause shown by such proof.

8. Under the provisions of secs. 4396 and 4397 of the Rev. Codes, it is discretionary with the jury in certain designated cases to find either a general or special verdict, and where the issues are numerous and their nature such as likely to confuse the jury, the court should insist on a special verdict and should formulate the issues into distinct propositions and logical and concise questions, and the power of the court is a discretionary power to determine whether the issues are such that the jury will be aided by the submission of certain questions, where the separate issues are distinctly stated in logical concise questions so that the jury will be able to intelligently answer the same; and unless this discretionary power of the trial court is abused, there is no error in refusing to submit to the jury special interrogatories.

APPEAL from the District Court of the Eighth Judicial District for Bonner County. Hon. R. N. Dunn, Judge.

An action to recover damages for injuries sustained by fire escaping from engines operated by a railway company. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Edward J. Cannon, and George M. Ferris, for Appellant.

When it is shown that a fire has started shortly after a locomotive has passed, and it is further shown that there were no other fires in the immediate vicinity, a presumption of negligence arises which the defendant must rebut by proof of proper construction and use of proper appliances and careful management and operation of its locomotives, and when the defendant has done this, it is entitled to an instructed verdict in its favor. (Osborn v. Oregon etc. R. R. Co., 15 Idaho 478, 16 Ann. Cas. 879, 98 P. 627, 19 L. R. A., N. S., 742; Smith v. N. P. Ry. Co., 3 N.D. 17, 53 N.W. 173; Spaulding v. Chicago Ry. Co., 30 Wis. 110, 11 Am. Rep. 550; Woodward v. Chicago Ry. Co., 145 F. 577, 75 C. C. A. 591; Menominee Co. v. Milwaukee Ry., 91 Wis. 447, 65 N.W. 176; Louisville Ry. v. Marbury Co., 125 Ala. 237, 28 So. 438, 50 L. R. A. 620; 3 Elliott on Railroads, 2d ed., 1245.)

A presumption is not evidence of anything. (Scarpelli v. Washington W. P. Co., 63 Wash. 18, 114 P. 870.)

While there are some cases which hold that evidence of other fires is admissible, the rule seems to be well settled that the testimony must show that the engines which set the other fires were of similar equipment as the one which it is claimed set the fire in controversy. (Lesser Cotton Co. v. St. Louis Ry., 114 F. 133, 52 C. C. A. 95; Shelly v. Philadelphia Ry., 211 Pa. 160, 60 A. 581; McFarland v. Gulf Ry. Co. (Tex. Civ. App.), 88 S.W. 450; Henderson v. Philadelphia Ry., 144 Pa. 461, 27 Am. St. 652, 22 A. 851, 16 L. R. A. 299; Crissey & Fowler Lumber Co. v. Denver Ry. Co., 17 Colo. App. 275, 68 P. 675; Collins v. New York Ry. Co., 109 N.Y. 243, 16 N.E. 50.)

While it is discretionary with the trial court as to whether or not special interrogatories will be submitted to the jury, yet it is a matter which is not left entirely to the discretion of the court, and it is a discretion which must be soundly exercised by the court and is subject to review if not so exercised. (Burke v. McDonald, 2 Idaho 679 (646), 33 P. 49, 17 Morr. Min. Rep. 325; Clementson, Special Verdicts, p. 51; Olmstead v. Dauphiny, 104 Cal. 635, 38 P. 505; Floaten v. Ferrell, 24 Neb. 347, 38 N.W. 732; Mangum v. Mining Co., 15 Utah 534, 50 P. 834; St. Louis Ry. Co. v. Jones, 59 Ark. 105, 26 S.W. 595; Atchison Ry. v. Lawler, 40 Neb. 356, 58 N.W. 968; Phoenix Ins. Co. v. King, 52 Neb. 562, 72 N.W. 855.)

G. H. Martin, and B. S. Bennett, for Respondent.

A railroad company is bound to keep its track and right of way clear of materials likely to be ignited by sparks issuing from its locomotives. Any negligence of such precaution will render it liable even though its appliances were proper and although it was guilty of no negligence in allowing the fire to escape. This is a duty which is implied in the grant of power to use locomotive engines. (33 Cyc. 1338; Thompson on Neg., 2d ed., sec. 2270; Diamond v. Nor. P. R. Co., 6 Mont. 580, 13 P. 367; MacMahon v. Railway Co., 2 Cal.App. 400, 84 P. 350; Hawley v. Railway Co., 49 Ore. 509, 90 P. 1106, 12 L. R. A., N. S., 526; Fireman's Fund v. Railway Co., 46 Wash. 635, 91 P. 13; Smith v. Railway Co., 33 Utah 129, 93 P. 187.)

The court will not be warranted in instructing a verdict for the defendant in a case of this kind, unless...