Hagen v. Chicago, D. & C.G.T.J.R. Co.

• Decision Date: 28 July 1891
• Citation: 86 Mich. 615,49 N.W. 509
• Parties: HAGEN v. CHICAGO, D. & C. G. T. J. R. CO.
• Court: Michigan Supreme Court

49 N.W. 509

86 Mich. 615

HAGEN v. CHICAGO, D. & C. G. T. J. R. CO.

Supreme Court of Michigan

July 28, 1891

Error to circuit court, Macomb county; ARTHUR L. CANFIELD, Judge.

Action by August Hagen against the Chicago, Detroit & Canada Grand Trunk Junction Railroad Company, for damages by fire. Judgment for plaintiff. Defendant brings error. Reversed.

E. W. Meddaugh, (H. Geer, of counsel,) for appellant.

Lungerhausen & Erskine, (Thos. M. Crocker of counsel,) for appellee.

MCGRATH J.

This action was brought to recover the value of certain buildings and contents destroyed by fire, alleged to have been caused by sparks thrown from an engine running upon defendant's road, upon which plaintiff's farm abuts. Plaintiff had judgment, and defendant appeals.

Plaintiff's testimony tended to show that the fire occurred September 15th, at about 9 o'clock A. M that the buildings burned were located about 160 feet from the tracks; that there had been no rain for about four weeks, and everything was very dry; that there was a high wind, which was blowing with the train, and in the direction of plaintiff's buildings; that the train was running at a high rate of speed; that the engine was laboring very hard; that the fireman had the door of the fire-box open, and was poking the fire; that the poking of the fire would tend to throw out sparks; that, as the engine approached plaintiff's buildings, smoke of a bluish-gray color, streaked with red, was seen to roll over the buildings, and, in the course of a few minutes, fire was discovered in the shingle roof of one of the sheds, which spread into the other buildings; that the roof which took fire sloped towards the train as the train approached; that just before it reached plaintiff's place, after the same train has passed, on that morning, fire was discovered in a clover field near defendant's right of way, about half a mile south of plaintiff's buildings, in the direction from which the train came. Defendant's testimony tended to show that the machinery, smoke-stack, and fire-box of the engine were in good order, and were of the most approved kind, the best in use; that they had been examined on the morning of that day, and were examined the next day after the fire, by competent persons, and found to be in good order; that the engineer and fireman were skillful and competent, and were managing the train carefully and skillfully; that the fireman was not poking the fire as it passed plaintiff's premises; that it was not necessary to poke the fire, and that poking the fire would not tend to throw out sparks; that an engine, in good repair and properly managed, could not throw fire from the track to plaintiff's buildings, and that the barn was on fire before the train reached the buildings. The fact and extent of the fire was not disputed, nor was it attempted to be shown that the fire could have originated in any other way.

The first question raised is that the verdict of the jury is not warranted by the evidence; that inasmuch as the testimony introduced by defendant, that the apparatus was in good order, and was properly managed, and that the engineer and fireman were competent and skillful, was uncontradicted, those facts should have been treated as established, and a verdict directed for the defendant. In the absence of any testimony tending to show that the fire could have happened in any other way, the jury was justified in finding that the fire was started by a spark from the locomotive. Having concluded that the fire was caused in that manner, they were entitled to consider, as bearing upon the question of negligence, not only defendant's testimony as to the condition of the locomotive, the competency and skillfulness of the engineer and fireman, and the proper management of the locomotive on that occasion, but also the testimony as to the poking of the fire, its effect upon the emission of sparks, and in that connection defendant's testimony that it was unnecessary to poke the fire. As bearing upon the question of the condition of the smoke-stack and fire-box, and the management of the locomotive on that occasion, they were entitled to consider the testimony regarding the clover-field fire, and the testimony offered by defendant that an engine in good order, and properly managed, could not possibly throw fire from the track to plaintiff's buildings. The only inference that could be drawn from the testimony relating to the impossibility of the communication of fire from the locomotive to plaintiff's buildings, in view of the circumstances of fire, was that the engine was either not in good order or was not properly managed. Johnson v. Railway Co., (Iowa,) 42 N.W. 512. Testimony cannot be said to be undisputed, when inconsistent with some other fact or circumstance, either established or regarding which testimony has been admitted. The court very properly declined to take the case from the jury, or to pass upon the conclusiveness of the testimony offered by the defendant.

It appeared that the buildings which were destroyed had been insured, and that the insurer had paid the loss, but the court rejected testimony as to the amount paid as immaterial, and this is assigned as error. The question is ruled by Perrott v. Shearer, 17 Mich. 48-55.

The court instructed the jury that, "if you find that the fire was caused by a spark from the engine, the law raises a presumption of liability on the part of the defendant. The burden of proof is then passed upon defendant, in order to escape such liability, to show affirmatively, to your satisfaction, that the engine from which the fire originated was, at the time in question, properly constructed, and equipped with the best approved appliances for preventing the escape of fire. * * * In regard to the construction of its engine and appliances to prevent the escape of fire and sparks, a railroad company is required to keep constantly in use 'the most approved machinery and apparatus for that purpose on their engines.' * * * (3) If you are satisfied from the evidence that, at the time in question, the defendant's engine was properly constructed and equipped with the best-known and most approved apparatus to prevent the escape of fire therefrom, and that the same was in good repair, as to its machinery, fire-box, and smoke-stack, and the engine and train was properly managed with reasonable...