Hartford Fire Ins. Co. v. Central R.R. of Oregon

• Decision Date: 24 November 1914
• Citation: 74 Or. 144,144 P. 417
• Parties: HARTFORD FIRE INS. CO. ET AL. v. CENTRAL R. R. OF OREGON.
• Court: Oregon Supreme Court

144 P. 417

74 Or. 144

HARTFORD FIRE INS. CO. ET AL. v. CENTRAL R. R. OF OREGON.

Supreme Court of Oregon

November 24, 1914

In Banc.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Action by the Hartford Fire Insurance Company and others against the Central Railroad of Oregon. Judgment for plaintiffs, and defendant appeals. Reversed and remanded for new trial.

Geo. T. Cochran, of La Grande (L. Z. Terrall, of Union and Cochran & Eberhard, of La Grande, on the brief), for appellant. R. J. Kitchen, of Union, for respondents.

McNARY J.

Having been subrogated to the rights of the owner of a barn by reason of a contract of insurance, plaintiff brings this action to recover damages for the destruction of the building caused by an emission of sparks from an engine operated by defendant. It is sufficient to say that a verdict for $500 was returned in favor of plaintiff. The fire occurred on April 11, 1913. The property destroyed was a barn located about one-fourth of a mile north of the defendant's track. But a measure of time prior to the burning of the barn, a fruit dryer which stood close by the railway track was destroyed by a fire avowed to have occurred on account of sparks escaping through an imperfect spark arrester used by defendant on one of its engines and thence communicated to the barn by the force of atmospheric agencies. Answering, defendant pleaded a general denial and a separate defense alleging matter calculated to charge the owner of the barn with contributory negligence in making no effort to prevent the spread of the fire from the dryer to the barn.

In its pleading, plaintiff identified the engine productive of the fire as "No. 12 with cars attached." Upon the investigation of the issues before the jury, plaintiff's witnesses failed to identify the engine with that particularity of detail set forth in the pleading, and for that account error is assigned in the court's refusal to sustain defendant's objection to evidence of other fires having been started by the engine in question. The attack involves the following testimony, given by a witness called by plaintiff:

"Q. Did you, on this morning of the 11th of April notice an engine of the Central Railroad of Oregon, as it passed there? A. Yes, I noticed them pass. Q. I will ask you to state if you noticed the size of the cinders or coals that were emitted from this engine. A. Do you mean this particular morning? Q. Well, that morning, or any morning we will say, within 60 days previous to the fire or 60 days after the fire. A. Yes, I have noticed some fire flying from this engine. Q. Show the jury about how large or about the size of the sparks or cinders emitted from that engine as it passed there. A. Well, I am not positive about that. I could not say whether these coals that I have seen recently came from this engine. I didn't say the coals came right from the engine and fell on the ground and then designated them as coals coming from the engine. I did not try to be as positive as that. * * * This fire occurred about five minutes after the train passed."

The testifier further added that he had observed other fires originating along the railroad track before and after the fire and shortly after the defendant's railroad engine had passed over its track in the vicinity of the barn. A consideration of the evidence satisfies us that the witness properly identified the engine emitting the sparks as the one described in plaintiff's complaint. In any event, the defendant's liability will not be softened or absolved, nor the testimony rendered incompetent, if the sparks were emitted by some engine other than the one particularized in the pleadings. The question therefore is whether the proximate cause of the fire was due to the manner in which the engine was operated, or the diligence exercised in providing the engine with devices best calculated to prevent the escape of the agencies of ignition. The propriety of testimony having for its office the proof of other fires seasonably following in the wake of an engine from whose stack sparks were being emitted has been before this court and settled in favor of the admission of testimony of that character. Gerome T. La Salle et al. v. Central Railroad of Oregon, 144 P. 414, and cases cited.

Plaintiff resting, defendant moved the court for an order of nonsuit upon these grounds: (1) That the incorporations of plaintiff and of defendant had not been proved; (2) that the act of the defendant was not the proximate cause of the fire; (3) that plaintiff was guilty of contributory negligence. The court declined to heed the motion; therefore error is assigned.

Naturally, by this defense, the defendant hopes to fasten upon the insured the consequences of any failure upon his part to observe those precautions which the circumstances surrounding the fire would suggest. Primarily the defendant is liable for its own negligence, and its only exit from liability on the ground of contributory negligence of the sufferer is by showing that the fire would not have occurred if the owner had taken such precautions as his observation and experience had taught him to be necessary. Therefore the insured is liable only for the proper use of his own faculties. Baltimore, etc., R. Co. v. Cumberland, 176 U.S. 232, 20 S.Ct. 380, 44 L.Ed. 447; Union Pacific Ry. Co. v. McDonald, 152 U.S. 262, 14 S.Ct. 619, 38 L.Ed. 434; 19 Cyc. 831. Almost universally the courts have held that47 the question of negligence is one of fact and not of law where more than one inference can be drawn from the evidence. When the facts are undisputed, it is a question of law; where the evidence conflicts, a question for the jury. Reference is made, for an illustrative case, to Greenwood v. Eastern Oregon Power Co., 67 Or. 433, 136 P. 336. A digest of the evidence warrants the statement that the owner of the barn left his home immediately when he observed the fire in the dryer and aided in its extinction; that upon his return to the house he heard a neighboring lady scream, "Fire!" when he saw his barn in flames; that he then ran to the barn and removed the articles stored therein. From the plaintiff's conduct, the trial court could not say as a matter of law that the plaintiff did not exercise those precautions which experience has taught to be necessary under the circumstances of the transaction. The jury alone could judge.

Was the act of the defendant the proximate cause of the fire? Counsel for defendant says, "No." With assurance it may be said the evidence shows that on the day of the fire a robust south wind was blowing across the railroad track in the direction of the prune dryer and the barn, which was located about a quarter of a mile distant therefrom; that the weather was exceedingly dry and had been for a period of time; and that nothing interposed between the dryer and the barn to prevent sparks and flames of fire from being carried from the burning dryer to the barn. Counsel argues that the distance between the dryer and the barn "was certainly far enough, so that as a matter of law the court can say that the damages...