Jennings v. Pennsylvania Railroad Co.

• Decision Date: 10 November 1879
• Citation: 93 Pa. 337
• Parties: Jennings <I>versus</I> Pennsylvania Railroad Co.
• Court: Pennsylvania Supreme Court

Page 337

93 Pa. 337

Jennings versus Pennsylvania Railroad Co.

Supreme Court of Pennsylvania.

October 30, 1879.

November 10, 1879.

October 30th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, TRUNKEY and STERRETT, JJ. PAXSON and GREEN, JJ., absent

Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1878, No. 264. (Western District.)

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Cowan & Stewart, for plaintiff in error.—The plaintiff showed the fire originated from the engine of the defendant, and he went further, he showed they might have avoided it; that the engine must have been rendered dangerous in some way, either by removing the spark-catchers or knocking holes in them after they left Altoona or Derry, or that they were loaded too heavily for the grade at this point, and being overstrained, the spark-arresters were rendered ineffectual. It was shown that it was only on this heavy grade that fire was thrown out, and only on going up it; and the reason given was, that it took a fiercer fire to make enough of steam, and to get a fiercer fire there must be a stronger draft up the smoke-stack, which would drive out, and did drive out, coals of fire as large as a hickory nut or a walnut. These were the coals that made the fires, and according to the position of the company such coals could not escape through the spark-catchers. But suppose they did escape, was it not fair to infer that the latter had been taken out or tampered with? We think the court below dwelt too much upon the mere fact of the engines having been provided with spark-catchers at Altoona and Derry, and that it was incumbent upon the plaintiff to show such was not the case. How else was he to do it except by showing that the sparks were not caught and the reason of it?

H. D. Foster and H. C. & J. A. Marchand, for defendant in error.—In the absence of all testimony on the part of the plaintiff tending to show that there was negligence for want of sufficient spark-arresters, and the fact proved by defendant's witnesses that they were in good condition, and were of the most approved kind, it was the duty of the court to withdraw the question from the jury, and decide as they did. [See Philadelphia & Reading Railroad Co. v. Schultz, post, page 341. — REP.]

The judgment of the Supreme Court was entered November 10th 1879,

PER CURIAM.

This case cannot be distinguished from the Philadelphia and Reading Railroad Company v. Yerger, 23 P. F....