Hawley v. Sumpter Valley Ry. Co.

• Decision Date: 16 July 1907
• Citation: 90 P. 1106,49 Or. 509
• Parties: HAWLEY v. SUMPTER VALLEY RY. CO.
• Court: Oregon Supreme Court

90 P. 1106

49 Or. 509

HAWLEY v. SUMPTER VALLEY RY. CO.

Supreme Court of Oregon

July 16, 1907

Appeal from Circuit Court, Baker County; Samuel White, Judge.

Action by W.R. Hawley against the Sumpter Valley Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

Plaintiff sues to recover in damages the value of a quantity of hay and a shed in which it was stored, which were destroyed by fire on August 31, 1905, on his farm. It is alleged, in effect that about 10 o'clock in the forenoon of that day three of defendant's trains going west passed along its road the right of way of which abutted upon plaintiff's premises, where he had his hay stored; that by reason of improperly constructed engines, carelessly and negligently operated and managed by defendant's employés, flaming sparks and coals were emitted therefrom, which lodged in and ignited a quantity of grass, leaves, brush, logs, and other rubbish, which defendant had carelessly allowed to accumulate on its right of way; that the fire spread from the right of way to plaintiff's hay, destroying it and his shed. There was a general denial of the complaint, and also an affirmative defense, to the effect that defendant's engines were at that time in charge of skillful, careful, and competent employés, and that the engines were properly constructed and possessed suitable appliances for arresting sparks and cinders, and that none of the engines passing plaintiff's premises that morning were overworked or oversteamed; that the fire was not caused by its engines, and did not start upon its right of way, but that it started on plaintiff's premises, and was caused by parties unknown to it, not defendant's employés; and that the fire, after having started without defendant's fault, spread to its property. By his reply, plaintiff denies the affirmative matter in the answer. The trial resulted in a verdict for plaintiff, upon which judgment was entered, and from which defendant appeals. There was a motion by defendant for a nonsuit at the close of plaintiff's case, as well as one for a directed verdict in its favor at the close of its case which motions were overruled. Assignment of errors are based thereon, as well as upon exceptions to the admission of testimony and to instructions of the court.

V.N. Tomlinson, for appellant.

C.H. McColloch, for respondent.

SLATER C. (after stating the facts).

No direct testimony was offered by plaintiff tending to show any defective construction or want of repair of any of defendant's engines, or of any careless or negligent operation of any of them on the day on which his property was destroyed, nor was he able to identify any particular engine, which he claimed set the fire, further than to show by number the three particular engines which passed his premises in the forenoon of August 31, 1905, which three engines did practically all of the hauling on that part of defendant's road in the vicinity of plaintiff's farm. But it was also shown that all of defendant's engines were practically of the same construction as to fire boxes and devices for arresting sparks. The evidence on the part of plaintiff tends to show that on the morning of August 31, 1905, between the hours of 8 and 9 o'clock, there was no fire about his premises or his haystacks; that between the hours of 9:30 and 10:20 o'clock on that morning defendant ran its three trains of cars going west over its road, where the same passes over and across plaintiff's premises and adjacent to his hay shed, where he had 42 tons of loose hay and 12 tons of baled hay stored; that the distance, according to one witness, from the hay shed to the track, is from 50 to 100 yards; that defendant had allowed to accumulate and remain on its right of way, where it is claimed the fire originated, a quantity of dry grass, brush, logs, and ends of ties; that all of the engines of defendant used over said road were practically of the same construction as to fire boxes and spark arresters; that defendant's roadbed for some distance before reaching the place opposite where the hay was stored when coming from the east and going west has a pretty good upgrade, and that its engines, when passing this particular place, were in the habit of emitting a quantity of flaming sparks and cinders. One witness in describing that said: "There was a large quantity, a whole trail, flying back from the smoke stack," and that at least twice during the months of July and August of that year, and in the vicinity of plaintiff's premises, fires, were discovered on defendant's right of way soon or immediately after the passing of trains. There is no direct evidence in the record as to how or when the fire in question originated, but one Smith, who had been hauling wood from plaintiff's premises to the town of Sumpter, testifies that between the hours of 12 and 1 o'clock of that day, as he came from Sumpter along the public road, and was on an eminence opposite the haystack, he saw smoke coming from an old log on defendant's right of way, and between plaintiff's haystacks and the track. One end of this log, according to his testimony, was probably partly under plaintiff's fence. Witness was about 250 yards from the track opposite the hay, but could see that no fire was then on plaintiff's land between the right of way and his haystacks, and there was no fire at the haystacks. He testifies that he afterwards put up his team and loaded his wagon again with wood, but about 3 o'clock in the afternoon of that day he went down to the place where he had seen the fire and saw that plaintiff's hay had been consumed, and he also saw the log burning from which he had observed smoke coming earlier in the day. There was a burned track 20 to 40 feet wide leading from the right of way up to the place where the shed and haystacks had been, but were then destroyed, and it appeared to this witness that the fire had traveled from the right of way to the haystacks. The fire had also extended upon and along defendant's right of way some distance to a bridge or culvert, which was burning. Alexander Stedman, another witness, also testified in plaintiff's behalf that he passed along by plaintiff's premises about 1 o'clock of that day and noticed that the right of way was afire for a distance of 150 to 200 yards up and down the track, and the fire was burning in some logs and old tie ends that had been piled upon the right of way; that the end of the haystack had just caught on fire, and quite a strip of land from the right of way to the stack had been burned over; that the fire was moving from the right of way towards the stacks. Both of these witnesses testify that at the time they were at the place the fire was burning the wind was blowing from the right of way toward the stacks.

Upon this state of the testimony defendant urges its right to a nonsuit. The gist of plaintiff's cause of action is negligence of the defendant in running upon its road engines improperly constructed, and in a careless and negligent manner, by reason of which sparks of fire and flaming coals were thrown out and upon grass, rubbish, and logs carelessly left and allowed to accumulate upon its right of way, setting fire thereto, which spread and destroyed plaintiff's property. The negligence here alleged is of a double nature: (1) In the use of improperly constructed engines or the careless and negligent operation of them which caused the fire that consumed plaintiff's property; and (2) in allowing brush, rubbish, and logs to accumulate and remain upon its right of way which became ignited by sparks and coals of fire from defendant's engines. In the former case, to make defendant liable, plaintiff must prove negligence on its part in using defective engines, or negligence in the operation of them, by which the fire was caused. But in the latter case, it is sufficient to charge the defendant, if the evidence shows that it allowed rubbish to accumulate and remain upon its right of way, which became ignited by sparks or coals coming from its engines, although defendant may have been supplied with the best of engines, and the most approved appliances for preventing the emission of sparks, and although its engines may have been operated by the most skilled engineers, if a fire, the origin of which has been traced to defendant's engines, occurs in consequence of a negligent failure on the part of defendant to keep its right of way reasonably clear of dangerous combustible material, and damage thereby ensues to property of another, it would be liable. Richmond v. McNeill, 31 Or. 342, 49 P. 879. The evidence in the case at bar tends to...