Jordan v. Spokane, P. & S. Ry. Co.

• Decision Date: 15 January 1920
• Docket Number: 15495.
• Citation: 109 Wash. 476,186 P. 875
• Court: Washington Supreme Court
• Parties: JORDAN v. SPOKANE, P. & S. RY. CO.

186 P. 875

109 Wash. 476

JORDAN v. SPOKANE, P. & S. RY. CO.

No. 15495.

Supreme Court of Washington

January 15, 1920

Department 2.

Appeal from Superior Court, Spokane County; Daniel H. Carey, Judge.

Action by E. S. Jordan against the Spokane, Portland & Seattle Railway Company. From a judgment of nonsuit entered at the close of his case, plaintiff appeals. Reversed, with instructions to grant a new trial.

J. S McDonald, of Cheney, and Ayers, McDonald & Greenough, of Spokane, for appellant.

Cannon & Ferris, of Spokane, for respondent.

TOLMAN J.

This appeal is from a judgment of nonsuit entered at the close of plaintiff's case, and in order to sustain the judgment it must appear as a matter of law that there is neither evidence nor reasonable inference therefrom which would have sustained a verdict in plaintiff's favor. Godefroy v. Hupp, 93 Wash. 371, 160 P. 1056, Ann Cas. 1918E, 494; Fobes Supply Co. v. Kendrick, 88 Wash. 284, 152 P. 1028.

Appellant as plaintiff below brought this action to recover damages to his property caused by a fire alleged to have been set by respondent company, its servants and agents, and by them permitted to remain and burn on its right of way, and negligently and carelessly allowed by them to escape therefrom onto appellant's land adjoining, there consuming his property and causing the damages complained of. There is evidence that the fire was first seen by a neighbor burning on respondent's right of way on the side of the track opposite from appellant's land, and, in the language of the witness:

'A. It was on my side of the track where there had been a construction track built upon the right of way. They called it the overland track and the fire was burning up onto that track, and I went and asked the section men, I suppose it was the section men working on the track, and they came and helped me fight the fire out on that side, and I seen the fire on the other side of the track between the track and the railroad.

'Q. What was it burning here? A. That was ties and peat.

'Q. When did you next see the fire, and where was the fire? A. Then the next day I came out to watch that fire again, and I seen where the fire had gone over this waste dump along somewhere close to the bluff, I do not remember whether it was 50 yards away from the bluff or not, but there was one fire close to the bluff and the main fire over here because there was ashes there where it burned.

'Q. Where did it go when it went over the bluff? A. Went onto the Jordan--or on the other piece of the right of way and then on Jordan's land, having burned over, and then upon the scab land, timber land with some bunch grass in it, and it was burning the haystack when I came from my place. That is what called my attention to it.'

This appears to be the only evidence as to the origin of the fire, the only knowledge of its existence brought home to respondent, and the only evidence tending to show what respondent did or failed to do in the matter of preventing the spread of the fire onto appellant's property. But with this may also be considered other evidence in the case to the effect that the fire occurred at the dryest season of an unusually dry year, and that the land both on the right of way and that of appellant adjoining, as well as the embankment thrown up along the line which divided them, was all of a peaty nature which held and permitted fire to spread readily.

Respondent's main argument here is that there was no evidence as to the origin of the fire, no evidence that respondent failed to use reasonable means to prevent its escape and spread, and that negligence will not be presumed. In other words, that the burden was on appellant to offer evidence to show that respondent, after knowledge of the existence of the fire on its property, did not use reasonable means to prevent its escape onto the land of appellant. While, on the contrary appellant contends that having offered evidence of the existence of the fire on respondent's property, evidence tending to show knowledge thereof on the part of respondent, and evidence tending to show the escape of the fire to appellant's land, the jury might draw the inference therefrom that respondent negligently omitted to use reasonable means to prevent such escape and spread. In Sandberg v. Cavanaugh Timber Co., 95 Wash. 556, 164 P. 200,...