Henderson v. Railroad Co.

• Decision Date: 26 October 1891
• Citation: 144 Pa. 461
• Parties: HENDERSON ET AL. v. PHILA. ETC. R. CO.
• Court: Pennsylvania Supreme Court

144 Pa. 461

HENDERSON ET AL. v. PHILA. ETC. R. CO.

Supreme Court of Pennsylvania.

Argued April 2, 1890.

Re-argued April 6, 1891.

Decided October 26, 1891.

Argued before STERRETT, GREEN, CLARK, WILLIAMS and MITCHELL, JJ; re-argued before a full Bench.

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY.

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Mr. Gavin W. Hart, for the appellant:

1. The testimony for the plaintiffs having shown that a person specially hired to look at passing engines, did so look and saw nothing irregular in the action of the engines passing the plaintiffs' mill shortly before the fire, and saw no sparks, it was not competent to prove the action of other engines, at other times and places, to establish the charge of negligence. Such proof was received under the case of Gowen v. Glaser, 3 Cent. R. 109; but a comparison of the offers made in this case with the offer in that, will show that they are dissimilar. In Gowen v. Glaser the offer included all locomotives, of every description, while no more was offered in the present case than to show that many of the locomotives habitually threw sparks. The admissibility of such an offer as the latter, has been directly negatived in cases hereafter to be cited, where the circumstances were like those of this case. The decisions on spark-arresters may be divided into two categories: (1) those that were given to the jury or should have been; and (2) those that were taken away from the jury or should have been.

2. The decisions in the first category are: Huyett v. Railroad Co., 23 Pa. 373; Lackawanna etc. R. Co. v. Doak, 52 Pa. 379; Frankford etc. Turnp. Co. v. Railroad Co., 54 Pa. 345; Penna. R. Co. v. Stranahan, 79 Pa. 405; Phila. etc. R. Co. v. Hendrickson, 80 Pa. 182; Penna. Co. v. Watson, 81^* Pa. 293; Penna. etc. R. Co. v. Lacey, 89 Pa. 458; Lehigh V. R. Co. v. McKeen, 90 Pa. 122; Phila. etc. R. Co. v. Schultz, 93 Pa. 341; Albert v. Railway Co., 98 Pa. 316; Gowen v. Glaser, 3 Cent. R. 109. The general result of these decisions is, that in order that the case may be given to the jury, there must appear affirmatively at least one of the following facts: (a) that the engine attacked as the cause of the fire threw unusual sparks at the time of passing; (b) such a state of facts, in the absence of direct evidence as to its action when passing, that the only reasonable conclusion is that the engine caused the fire; (c) that the engine in fact had no spark-arrester, or one that was defective, such defect causing the fire; (d) there must be evidence, not only of a fire, but that the fire was caused by some negligent act, which act must be shown affirmatively, or be the only reasonable inference from the facts so shown.

3. The cases in the other category are: Phila. etc. R. Co. v. Yeiser, 8 Pa. 366; Phila. etc. R. Co. v. Yerger, 73 Pa. 121; Erie Ry. Co. v. Decker, 78 Pa. 293; Jennings v. Railroad Co., 93 Pa. 337; Reading etc. R. Co. v. Latshaw, 93 Pa. 449; Albert v. Railway Co., 98 Pa. 318, cited in the first category on another point: Penna. R. Co. v. Page, 21 W. N. 52. Their general result is embraced in the three following propositions: (a) When the engines alleged to be in fault are seen, the inquiry is limited to them and them alone. (b) If seen, their actions at any other time are immaterial, and the testimony must be confined to the time in question. (c) Even evidence that the spark-arresters are defective is immaterial, if there be no evidence that their action caused the fire. The engines in the present case were identified. As the case of Erie Ry. Co. v. Decker, supra, shows, the identification need not be by number. The time of passing is as much identification as the number would be. The true test, when the engine attacked is seen, is what did it do at the time of seeing it? But one engine, No. 72, passed the mill shortly before the fire, and the evidence shows that it was in perfect condition.

Mr. P. F. Rothermel, Jr., for the appellees:

1. Negligence in the use of defective spark-arresters may be shown by evidence of the emission of sparks that were unusually large in size, or were the cause of unusual and frequent fires along the line of the road: Huyett v. Railroad Co., 23 Pa. 373; Penna. R. Co. v. Stranahan, 79 Pa. 405; Phila. etc. R. Co. v. Hendrickson, 80 Pa. 182; Penna. Co. v. Watson, 81^* Pa. 293; Penna. etc R. Co. v. Lacey, 89 Pa. 458; Lehigh V. R. Co. v. McKeen, 90 Pa. 122; Phila. etc. R. Co. v. Schultz, 93 Pa. 341; Gowen v. Glaser, 3 Cent. R. 109. Where the identity of the engine which caused the fire is known to the plaintiff, such evidence must be confined to that particular engine: Erie Ry. Co. v. Decker, 78 Pa. 293; Jennings v. Railroad Co., 93 Pa. 337; Albert v. Railway Co., 98 Pa. 316; but, where its identity is not known to the plaintiff, the habitual use of defective spark-arresters on the defendant's engines may be shown: Penna. R. Co. v. Stranahan, 79 Pa. 405; Gowen v. Glaser, 3 Cent. R. 109. That the two decisions last cited are not peculiar to the law of Pennsylvania, is shown by a host of authorities: Shear. & Redf. on Negl., § 675; Whart. on Negl., § 871; Thompson on Negl., 159; Grand Trunk R. Co. v. Richardson, 91 U. S. 454, and cases cited.

2. Defendant's counsel in his argument ignores the unidentified engines which were not seen by Staib. Moreover, their claim that seeing an engine is identification, though the person seeing it cannot distinguish it in any way from any other engine on the road, is not supported by the cases. Inability to identify means inability to produce direct proof as to its conduct, because it is not known. The contention that the offer in the present case differs from that made in Gowen v. Glaser, 3 Cent. R. 109, is not well founded. The evidence held competent and, sufficient to show, presumptively, negligent construction and management of unknown engines, in Gowen v. Glaser, supra, and Penna. R. Co. v. Stranahan, 79 Pa. 405, was identical with that offered and received in the case at bar. As those two cases are the only ones in Pennsylvania in which this question has arisen, it would seem unnecessary to discuss the other cases which have been reviewed by defendant's counsel; but a number of the conclusions they have sought to draw from the cases so reviewed, are unwarranted.

OPINION, MR. JUSTICE CLARK:

This action was brought to recover damages for the destruction by fire of the plaintiff's sash and door mill at Montgomery, in Lycoming county. The mill was situate between the Pennsylvania and the Philadelphia & Reading railroads; the former passing in front, and the latter in the rear of the mill. The plaintiffs allege that the fire, which occurred on the tenth day of August, 1888, was communicated from sparks emitted by the defendant's engines. The fire was discovered about 6 or 6.15 o'clock P. M., in the upper part of the ventilator, on the side next the defendant's road. The ventilator was about thirty feet high, and was within twenty-two feet of defendant's road.

The watchman testifies that he came on duty that evening about fifteen minutes before shutting-down time, and that the mill shut down at about 5.30 P. M. mill time, or 5.15 railroad time; that after he came on duty, and before the fire, two trains passed; the first a coal train, going north, drawn by an engine which he could not identify; and, about fifteen minutes later, a freight train, drawn by engine No. 72. The defendant's evidence, however, showed that two other engines, drawing passenger trains, passed this point, one at 5.21 and the other at 5.22 P. M., neither of which engines was identified; indeed, it would seem that the plaintiffs did not know they had passed the mill until the fact was developed in the defendant's testimony. The watchman testifies, further, that it was his duty to take notice of the engines as they passed, to see whether they threw fire from the stacks; that he did watch the engine in front of the coal train, and also engine No. 72, and that he saw no sparks; but that, as it was only six o'clock, and the sun was shining brightly, there may have been sparks emitted which he did not see. The only engine known, and identified was No. 72.

The defendant's contention was that the fire occurred in the pit containing the shavings and débris of the mill, which was immediately underneath the ventilator, and from which the shavings, etc., were supplied as fuel to the furnace. There is a large volume of testimony bearing upon the origin and cause of the fire, upon consideration of which the jury found the fire to have been caused by sparks from the defendant's locomotive engines.

The Philadelphia & Reading Railroad Co., at the time of the injury complained of, was an incorporated company, entitled to the right of way for its engines, etc., upon their track, as located in the rear of the plaintiffs' mill. The company, in the proper use of its road, was therefore in the lawful pursuit of a legitimate business, and if injury resulted to the plaintiffs, it is damnum absque injuria; the company cannot be mulcted in damages except upon proof of negligence: Frankford etc Turnp. Co. v. Railroad Co., 54 Pa. 345; Phila. etc. R. Co. v. Hendrickson, 80 Pa. 182. No person is answerable in damages for the reasonable exercise of a right, when the act is done with a cautious regard for the rights of others, and where there is no ground for the charge of negligence, unskilfulness, or malice. For the ordinary risks, the landowner is compensated in the damages for right of way; negligence, therefore, is the gist of the action, and the burden of proof is upon the plaintiffs to establish it. And as all engines, whether provided with spark-arresters or not, emit sparks, the mere...