Lesser Cotton Co. v. St. Louis, I.M. & S. Ry. Co.

Decision Date10 March 1902
Docket Number1,582.
Citation114 F. 133
PartiesLESSER COTTON CO. et al. v. ST. LOUIS, I.M. & S. RY. CO.
CourtU.S. Court of Appeals — Eighth Circuit

Syllabus by the Court.

Where the engine which alone could have set the fire is identified testimony that other engines of the defendant set fires or threw sparks at other times is incompetent in the absence of proof of similar condition and operation.

Where the engine which alone could have set the fire is identified and its spark arrester is shown to have been without holes punched in it at the time of the fire, it is incompetent to show a habit of the engineers of the defendant to punch holes in the spark arresters of their engines.

Where the engine which might have set the fire is not identified and the issue is either whether or not some unknown engine set the fire, or whether or not sparks could have flown from the engine to the burned building, testimony that other engines of the defendant at other near times and places set fires or threw sparks the requisite distance may be competent.

It is the duty of a railway company to exercise reasonable care to provide itself with the most effective mechanical contrivances in known practical use to prevent the escape of sparks and coals from its engines, but the law does not impose upon it the duty to absolutely provide such contrivances, or make it the insurer of their completeness of perfection.

The federal appellate courts are courts for the correction of errors, only, in actions at law; and questions which were not presented to the court below may not be received there because the trial courts cannot be guilty of errors in rulings they have never made upon issues that never were presented to them.

The opinion of a federal court upon the facts, expressed in a charge to a jury, is not reviewable on error, so long as no rule of law is incorrectly stated, and all matters of fact are ultimately submitted to the determination of the jury.

One who tries his case upon one theory may not reverse the judgment against him upon an inconsistent theory which was not presented or urged at the trial.

The legal presumption is that the evidence warranted the charge of the court, and, if the plaintiff in error would attack it for the insufficiency of the evidence, he must either present all the evidence before the trial court, or all the evidence relative to the subjects treated in that part of the charge challenged, together with the certificate of the trial judge that the bill of exceptions contains such evidence.

It is not error to refuse to give or to give a charge that greater care is required to protect against fires from operating engines in the presence of inflammable materials in a dry and windy time than on ordinary occasions, because it is not error to refuse to insert in a charge truisms which are a part of the common knowledge and experience of all men who have arrived at years of discretion, although it is not error to insert such statement.

Where a rule of law has been fairly submitted to the jury in the general charge, it is not error to refuse to repeat it in the words of counsel's request.

About 10 o'clock at night on Sunday, the 1st day of April, 1900, a fire broke out in the barn of one Best, in the town of Newport, in the state of Arkansas, which spread to a quantity of cotton near by, owned by the Lesser Cotton Company, and insured against fire by 14 insurance companies. The cotton was burned. The insurance companies paid the Lesser Cotton Company $195,000 on account of its loss, and then joined with that corporation in an action against the St. Louis, Iron Mountain & Southern Railway Company to recover against the amount which they had paid, on the ground that the fire was set by the negligence of the railway company, and that they had been subrogated to the rights of the cotton company. The railway company denied its liability, and at the trial there was testimony on the part of the plaintiffs tending to show that the fire was set upon the roof of the barn by sparks which the railway company permitted to escape from its engine No. 577 while the testimony for the defendant was to the effect that this engine was perfect in construction and condition, and was skillfully handled, and that the fire was set on the inside of the barn either by tramps, smokers, or a camp fire which was burning in the yard about 75 feet of the building. The court submitted to the jury the issues whether or not the fire was set by the sparks from the engine, and whether or not the railway company was guilty of any negligence in the construction, repair, or management of its locomotive. They returned a verdict for the defendant, and judgment was entered accordingly. This writ of error has been sued out to reverse this conclusion.

Ashley Cockrill and Joseph M. Stayton, for plaintiffs in error.

George E. Dodge and B. S. Johnson, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the case as above, .

The trial of this case occupied 12 days. The bill of exceptions is a statement of the issues, the tendency of the evidence of the respective parties, the rulings of the court upon the exclusion of evidence and its charge to the jury. It is a model of clearness and brevity. A large number of errors are assigned, and the logical and facile method of treating them will be to consider them in three groups: First, those relating to the exclusion of testimony; second, those relating to the charge of the court; and, third, those relating to its refusal to give requested instructions.

1. It is assigned as error that the court refused to permit witnesses produced by the plaintiffs to testify that other engines of the defendant than the one which alone could have set the fire, under the evidence, 'threw sparks a considerable distance, sufficiently large and live to set inflammable material on fire'; that it was the habit of operatives of engines on the defendant's road to punch large holes in the spark arresters of those engines, so that large cinders would be thrown through these holes; and that other engines of the defendant than the one which alone could have set the fire, under the evidence, contained defects, and were negligently handled, although they were similarly constructed. The bill of exceptions contains no record of the offer and rejection of any other evidence of negligence in the operation of, or of defects in, other engines than No. 577, except that relating to their scattering of sparks, and to the habit of punching holes in their spark arresters, so that the only question to be considered under this assignment is whether or not the latter testimony was improperly excluded. The record discloses the fact that the court refused to admit it because it was conceded in the case that, if the fire was caused by sparks from any of the defendant's engines, they came from engine No. 577, and the spark arrester of that engine had been produced in evidence in the court, and had been shown to be in the same condition as on the night of the fire, and no holes had been punched in it. It is insisted that these rulings were erroneous, because (1) there is evidence tending to show that the fire might have been caused by some other engine; and (2) because, even if the engine and spark arrester were identified, the testimony was competent to show a habit of negligence in operating and caring for the engines of the defendant. The first reason presents a question of fact, and it challenges a portion of the charge of the court; for the court instructed the jury, in effect, that, if the barn was set on fire by sparks from one of the defendant's engines, it was done by engine No. 577. The consideration of this question of fact is, however, foreclosed by the bill of exceptions, which in one place states that the defendant introduced evidence tending to show 'that there was no other engine there, and that, if the fire was set out, it was set out by a spark from engine No. 577. This fact was not controverted by the evidence, nor denied,'-- and in another place, where the evidence under consideration was offered, recites that this 'evidence was excluded by the court upon the ground that it being conceded in this case that, if the fire was caused by sparks from one of defendant's engines, it was caused by engine No. 577, such evidence as is offered would only be admissible if it could be shown that these engines were of a like kind, and had the same kind of a spark arrester, and were in the same condition that engine 577 was at the time of the fire.' The evidence upon this subject is not before us for consideration. This issue is concluded by these recitals, and this case must be considered and decided upon the recorded fact that engine No. 577 was the only one which could have set the fire of which the plaintiffs complain.

This brings us to the question whether or not after it was established that the only engine which could have set the fire was engine No. 577, and after its spark arrester, in the same condition, as when the fire was set, and without holes punched in it, was in evidence it was competent to introduce testimony that other engines of the defendant threw igniting sparks at other times and places, and that their engineers were in the habit of making holes in their spark arresters. In support of the position that this evidence should have been received, counsel cite a large number of cases which recite the remark of the supreme court in Railroad Co. v Richardson, 91 U.S. 478, 23 L.Ed. 356, that 'such evidence has, we think, been generally held admissible as tending to prove the possibility, and a consequent probability, that some locomotive caused the fire, and as tending to...

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