Green Ridge R. Co. v. Brinkman
| Decision Date | 24 June 1885 |
| Citation | 20 A. 1024,64 Md. 52 |
| Parties | GREEN RIDGE R. CO. v. BRINKMAN. [1] |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Allegany county.
Argued before ALVEY, C.J., and YELLOTT, MILLER, ROBINSON, IRVING and BRYAN, JJ.
A Hunter Boyd and Ferdinand Williams, for appellant.
Benjamin A. Richmond and William Brace, for appellee.
In the circuit court for Allegany county an action was instituted by the appellee against the appellant for the recovery of damages; the plaintiff averring in his declaration that he was the owner of a large quantity of tan-bark, corded wood and other property, and that said property was destroyed by combustion resulting from a fire occasioned by the engines and locomotives of the defendant being negligently run and controlled on the line of its road. The evidence offered by the plaintiff tended to prove that the defendant owned and operated a railroad constructed through a country covered with forest, at the foot of Green Ridge mountain; and that on the 28th day of April, 1884, a fire was originated near said road by sparks from defendant's engine, which first extended to the lands of one Ryan and Frederick Brinkman, who in their efforts to avert the danger "trailed the fire" along the mountain ridge, more than a mile from their lands to the plaintiff's land; that the plaintiff, assisted by others, encountered and resisted the conflagration in the same manner until about 3 o'clock in the morning, when, supposing that the flames had been subdued, he retired, and returned at 10 o'clock, about two hours after which time a fresh wind sprang up, carrying fire from the burning débris which ignited and destroyed the plaintiff's property and thus occasioned the claim for damages which forms the foundation for this suit. The plaintiff offered evidence tending to prove that the method employed to subdue the fire was necessary and proper. He offered no direct proof that the fire was caused by the engine, but proved that the fire was seen some 20 feet from the track of the road about three hours after the engine had passed that point. The plaintiff also proved that within a month previous to the 28th day of April, 1884, said engine had been seen to start two other fires, and that, on three occasions within that time, glowing cinders were observed dropping from said engine. The defendant offered to prove that among the farmers in that region it was a custom or usage to set fire to the leaves and underbrush at that season so as to improve the pasturage; and that annually, during many years before the defendant's road was built, such fires had been started in that valley and the adjacent mountains. Upon objection from the plaintiff, the court refused to admit such testimony, but permitted the defendant to prove the existence of any other fires which had been started in that vicinity within a month before or after that which, the plaintiff alleged, was the cause of the destruction of his property. The refusal of the court to admit evidence of a usage or custom as aforesaid forms the foundation of the defendant's first bill of exception. The defendant also excepted to the ruling of the court in granting the prayers of the plaintiff, and in rejecting its fifth and seventh prayers, and in modifying its third and sixth prayers. The defendant excepted especially to the plaintiff's prayers, assigning as a reason that there was no evidence legally sufficient to show that the defendant's engine started the fire mentioned in the declaration.
The question presented for determination in the first bill of exception relates to the propriety of the court's ruling in rejecting proof of usage and custom among the farmers in that locality. The fact of the existence of a certain custom or usage is sometimes admissible in evidence in an action involving the construction of contracts, because agreements may be supposed to have been made with reference to such known and established usages and customs as are not in conflict with the law of the land. Indeed, as the common law is but an embodiment of ancient usages and customs, having an extended and general application, the customs and usages of a neighborhood may, to some degree, be regarded as a species of local common law; but, in actions of this nature, evidence of usage or custom does not seem to be admissible. No authority has been cited to show that such evidence is proper and pertinent to the issue; and the decision of this court seems to be adverse to the adduction of such proof. Railroad Co. v. Shipley, 39 Md. 255.
The four prayers of the plaintiff which were granted by the court, and excepted to by the defendant, are so slightly variant that they might, with apparent facility, have been condensed and embodied in a single instruction. The first enunciates the proposition that, if fire was communicated by defendant's engine, there must be a finding for plaintiff, unless there was no negligence on the part of the defendant, or unless there was negligence on the part of the plaintiff. The second prayer declares that fire so communicated is prima facie evidence of negligence on the part of the defendant. In the third prayer the jury are told that if the defendant's engine, at the time of the fire complained of, "habitually scattered sparks," so as to endanger combustible material along the line of the road, it is a fact from which they may find...
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