Koontz v. Oregon Ry. & Nav. Co.

• Decision Date: 04 March 1890
• Citation: 20 Or. 3,23 P. 820
• Parties: KOONTZ v. OREGON RY. & NAV. CO.
• Court: Oregon Supreme Court

23 P. 820

20 Or. 3

KOONTZ v. OREGON RY. & NAV. CO.

Supreme Court of Oregon

March 4, 1890

Appeal from circuit court, Umatilla county; J.A. FALL, Judge.

(Syllabus by the Court.)

Where the language is that "an engine" of the defendant company, at the time and place specified, etc., by reason of negligence, caused the destruction of the plaintiff's property, held, the allegation does not identify the particular engine which caused the mischief.

. It is the duty of the plaintiff, in an action of this character, to state as definitely as possible what train caused the injury so that the company may be able to identify the engine, and investigate what its condition was, and the conduct of its agents and servants at that time.

The escape of fire from a passing engine, whereby property is destroyed, raises a presumption of negligence in the construction and management of such engine, and casts on the defendant the burden to rebut such presumption.

When the presumption raised is rebutted by proof of proper construction of the engine, and the use of proper appliances and careful management, the plaintiff cannot maintain the action without making proof of other negligence.

In such an action, where the objection was that the evidence of the emission of sparks by plaintiff's engine, prior and subsequent to the burning in question, was improperly admitted, held, not error; that such evidence was admissible.

ON REHEARING

In consequence of the difficulty in identifying a passing engine, so as to make direct proof of negligence, and for the reason that the business of running railroads supposes a unity of management and a similarity in construction of the engines, the admission of evidence, as to other and distinct fires from the one alleged, is permitted.

. When a court is asked to declare a fact established, the evidence must so completely establish that fact as to remove all doubt; otherwise it is for the decision of the jury.

Rufus Mallory, for appellant.

Tustin & Crews and Bailey & Ballery, for respondent.

LORD, J.

This is an action to recover damages for the destruction of the plaintiff's mill by fire emitted from a locomotive operated by the agents of the defendant. It is enough to say that after issue was joined, and a trial had, the verdict and judgment were for the plaintiff. The appeal presents several assignments of error, but we shall only notice those which were chiefly relied upon at the argument to work a reversal. It is insisted that the plaintiff, by the form of his pleading, has specified a particular engine which caused the mischief or loss, and by reason thereof has precluded himself from introducing evidence in relation to any other. The fifth paragraph of the complaint is as follows "That on the morning of the 30th day of April, 1888 about the hour of one o'clock A.M., the said defendant was, by its agents, servants, and employes, running an engine and train of cars over its road where the same passes along the said mill, warehouse, and granary of plaintiff as aforesaid; and plaintiff avers that said engine of defendant was unskillfully and imperfectly constructed, and unskillfully, carelessly, and negligently run and managed by the said defendant, and by its said servants and employes and that by reason of its said defective and improper construction, and the said unskillful, careless, and negligent operating and running of said engine by defendants, and its said agents, servants, and employes, there were emitted and ejected from said engine of defendant, opposite to and close to said mill, warehouse, and granary of plaintiff, a large quantity of sparks and burning cinders and coals; and the same were then and there by said engine, by reason of its defects and careless and negligent running and operation, thrown and scattered upon and over said mill, warehouse, and granary of plaintiff, and about the same, and did ignite and set fire to the same, and caused the same, with the said contents thereof, to be burned, consumed, and utterly destroyed, to the great damage of the plaintiff, in the sum of $39,361.72." In its answer the defendant admits that at or about the date mentioned in said paragraph, it was, by its agents, servants, and employes, running an engine and train of cars upon and over its road where the same passes plaintiff's said mill, warehouse, and granary, but denies that said engine was unskillfully or improperly constructed, or unskillfully, carelessly, or negligently run or managed by the defendant, and denies all other allegations of the paragraph quoted.

It will be observed that the language of the allegation is that "an engine," at or about the time and place specified, by reason of the negligence stated, caused the destruction of the plaintiff's property; but such allegation does not undertake to identify any particular engine which occasioned that loss of property, as averred. It was "an engine," but what particular engine of the many operated by the defendant is not indicated. By what name or number it was known, whether "Annapolis" or "Alexandria," or was No. 59 or 69, the allegation does not purport to specify. The evidence of the plaintiff indicates and tends to show that he endeavored to ascertain the particular engine it was that passed at the time and place alleged, and that he was unable to find out the particular engine it was. He knew that his mill property had been destroyed, and that the company, according to his verified complaint, had negligently caused the loss; but he was unable to say, and does not undertake to say, that he can identify the particular engine complained of.

The form of expression is not definite, but indefinite, as to the engine; but sufficiently specific, in connection with the other facts alleged, as to time and place when the accident occurred, to enable the defendant to ascertain, with a reasonable degree of certainty, what engine passed at the time alleged. A failure in this regard would have rendered the complaint liable to a motion to be made more definite. It is the duty of a plaintiff in such an action to state in his complaint, as definitely as possible, what train caused the injury, so that the company may be able to identify the engine, and investigate what its condition was, and the conduct of its agents and servants at such time. But the complaint is not objected to in this particular, but, on the contrary, the contention is that the allegation is so specific as to identify the particular engine, and limit the plaintiff in this proof to that engine. On its own contention, then, it may be taken for granted that the allegation is sufficiently definite to enable the defendant to ascertain the engine which caused the loss, and to prepare itself to meet the charge of negligence; but the allegation does not purport to identify the particular engine, or that the plaintiff knew what engine of the company it was, so that he could distinguish it from any other owned and operated by the defendant. The cases disclose, and the fact is, that it is not possible often for the plaintiff to know, so that he can identify, what particular engine occasioned the destruction of his property; but he may be able so to state other facts, as to time and place, and the kind of train, etc., as to enable the defendant to identify it with its means of knowledge, which the company is assumed to possess for the proper management of its trains, and the general conduct of its business. It will be noted that thus far the contention has been that the plaintiff, by the form of his allegation, had identified a particular engine as causing the alleged destruction of his property, and as a consequence, if this view was correct, that his proof must be limited to that engine, and could not logically include evidence relating to any other. It will be seen, then, that the conclusion deduced rests on the assumption that the allegation specified a particular engine to which the evidence for the plaintiff must be confined, but we have found, as a result of our interpretation, that such is not the true purport or effect of that allegation, and, the premise failing, it results that the conclusion must go with it.

To exclude, therefore, the evidence objected to, it must rest on some other basis than the argument suggested. This brings us to the consideration of several propositions involved in the contention of the defendant, which, for convenience, may be thus summarized: (1) That in actions of this character the burden of proof is on the plaintiff to show negligence; and (2) that the allegation and testimony for the plaintiff, taken together, so definitely point out the particular engine which caused the mischief that it was error to admit evidence relating to other engines; and (3) that the evidence for the defendant showed that the engine which passed the property at the time alleged was No. 59, and entitled the defendant to its instruction as asked.

Upon the first proposition, the contention of counsel for the appellant is that the negligence of the defendant will not be presumed from the mere fact that the fire was caused by fire escaping from the defendant's engine. Upon this subject the authorities are in open and irreconcilable conflict, and we must choose with which we shall side, for what seem to us the better and more cogent reason. In many of the states, the escape of fire from a passing engine, whereby property is destroyed, raises a presumption of negligence which shifts the burden of proof, and imposes on the defendant the duty to rebut such presumption by showing that it used safe appliances and competent servants. In other states, the mere fact that fire escaped from a passing engine, and property was destroyed, does not, of itself, raise a...