Macaw v. Oregon Short Line Railroad Co.

• Decision Date: 31 March 1930
• Docket Number: 5354
• Citation: 49 Idaho 151,286 P. 606
• Parties: MARTIN J. MACAW, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

286 P. 606

49 Idaho 151

MARTIN J. MACAW, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

No. 5354

Supreme Court of Idaho

March 31, 1930

RAILROADS - NEGLIGENCE - FIRES SET BY LOCOMOTIVES - EVIDENCE-SUFFICIENCY.

1. To recover damages for injuries to property by fire alleged to have been set by sparks from defendant's locomotive, it was necessary for plaintiff to estabish by competent substantial evidence, direct or circumstantial, that fire emanated from sparks thrown from defendant's locomotive and was communicated to plaintiff's property, no presumption of negligence arising from mere fact that defendant's train passed near place where fire later occurred.

2. In action for damage to property by fire, proof that fire was set by sparks thrown from defendant's locomotive and communicated to plaintiff's property, resulting in damage to or destruction thereof, would establish prima facie case and raise presumption of negligence casting burden on defendant to rebut it.

3. Finding that origin of fire damaging plaintiff's trees and crop was from sparks thrown by defendant's locomotive must rest on something more than surmise, conjecture or speculation, and evidence establishing no more than that fire might have been so set is not sufficient.

4. In action for damage to plaintiff's trees and crop by fire alleged to have been set by sparks thrown from defendant's locomotive, evidence held insufficient to sustain such allegation.

5. Proof of a bare possibility that injury may have been due to a given cause does not justify a finding that it was so caused, but evidence must furnish some logical basis for a finding that result was properly due to such cause.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. W. A. Babcock, Judge.

Action for damages. Judgment for plaintiff. Reversed.

Judgment reversed; costs to appellant. Petition for rehearing denied.

George H. Smith, H. B. Thompson and L. H. Anderson, for Appellant.

When evidence is circumstantial, plaintiff must exclude all other causes and must show that defendant's engine did in fact set the fire, and where plaintiff testifies that he does not know where, when or how the fire started, and introduces no evidence to show causal connection or due relation between the passing of the engine and the fire, there can be no recovery and verdict should be directed for the defendant. (Mt. Emily Timber Co. v. Oregon-Washington R. & N. Co., 82 Ore. 185, 161 P. 398-402; Foley v. Northern P. Ry. Co., 21 Idaho 713, 123 P. 835-839; Allen-Wright Furn. Co. v. Hines, 34 Idaho 90, 200 P. 889; Clark v. St. Louis & S. F. Ry. Co., (Mo. App.) 4 S.W.2d 843; Russell v. Boston & M. R. R. Co., (N. H.) 141 A. 227; Charlotte Harbor & N. Ry. Co. v. Orchard, 73 Fla. 986, 75 So. 533; Clark v. Grand Trunk Western Ry. Co., 149 Mich. 400, 12 Ann. Cas. 559, 112 N.W. 1121; Allen v. Maine Cent. R. Co., 112 Me. 480, 92 A. 615; Kansas City So. Ry. Co. v. Henderson, 54 Okla. 320, 153 P. 872; Ruppert v. Brooklyn Heights R. Co., 154 N.Y. 90, 47 N.E. 971; McCool v. Davis, 158 Minn. 146, 197 N.W. 93.)

The burden is on plaintiff to prove that the fire was caused by sparks or cinders negligently emitted from defendant's locomotive, and until the plaintiff shows that a fire was started by sparks from defendant's engine, there is no duty on the defendant to explain or show how the fire originated. (Mt. Emily Timber Co. v. Oregon-Washington R. & N. Co., supra; Bessemer Feed Mills v. Alabama Great So. Ry. Co., 217 Ala. 446, 116 So. 796; Carroll v. St. Louis & S. F. R. Co., (Mo. App.) 290 S.W. 647.)

A verdict based upon speculation or conjecture cannot stand. (11 R. C. L. 994; 33 Cyc. 1367; Holt v. Spokane & P. Ry. Co., 4 Idaho 443, 40 P. 56; Hargis v. Paulsen, 30 Idaho 571, 166 P. 264; Charlotte Harbor & N. Ry. Co. v. Orchard, supra; Turner v. Atlanta & St. A. B. Ry. Co., 197 Ala. 169, 72 So. 388; Maguire v. Seaboard Air Line Ry. Co., 154 N.C. 384, 70 S.E. 737; Allen v. Maine Central R. Co., supra.)

Proof that an engine emitted sparks is not proof of negligent construction or operation, and does not warrant submission of such question to the jury. (Mt. Emily Timber Co. v. Oregon-Washington R. & N. Co., supra; Bessemer Feed Mills v. Alabama Great So. R. Co., supra; General Ins. Co. of America v. Northern P. Ry. Co., 28 F.2d 574.)

Porter & Taylor, for Respondent.

Where the evidence on material facts is conflicting, or where upon all the facts and circumstances there is a reasonable chance or likelihood of the conclusions of reasonable men differing, the question is one for the jury. (Fodey v. Northern P. Ry. Co., 21 Idaho 713, 123 P. 835; Fleenor v. Oregon Short Line R. Co., 16 Idaho 781, 102 P. 897; Osborn v. Oregon R. & Nav. Co., 15 Idaho 478, 98 P. 627, 19 L. R. A., N. S., 742; Woodward v. Chicago M. & St. P. Ry. Co., 145 F. 577, 75 C. C. A. 591; Scarpelli v. Washington Water Power Co., 63 Wash. 18, 114 P. 870; Adams v. Bunker Hill Co., 12 Idaho 637, 89 P. 624.)

For a railroad company to permit combustible weeds and refuse to accumulate on its right of way, especially when it knows that sparks are emitted by its locomotives in passing, is in itself negligence. (33 Cyc. 1338; Thompson on Neg., 2d ed., sec. 2270; Diamond v. Northern P. R. Co., 6 Mont. 580, 13 P. 367; MacMahon v. Hetch-Hetchy & Y. V. Ry. Co., 2 Cal.App. 400, 84 P. 350; Hawley v. Sumpter Ry. Co., 49 Ore. 509, 90 P. 1106, 12 L. R. A., N. S., 526; Fireman's Fund Ins. Co. v. Northern P. Ry. Co., 46 Wash. 635, 91 P. 13; Smith v. Ogden & N.W. Ry. Co., 33 Utah 129, 93 P. 187; Fodey v. Northern P. Ry. Co., supra.)

BUDGE, J. Lee, Varian and McNaughton, JJ., concur. Givens, C. J., dissents.

OPINION

BUDGE, J.

Action to recover damages for negligent operation of defendant's locomotive from which sparks were alleged to have been thrown setting fire to weeds and rubbish on right of way which burned through to plaintiff's land, damaging his trees and crop of rye. On trial of the cause to court and jury a verdict was returned in favor of plaintiff. Defendant appeals from the judgment entered on the verdict and order denying motion for new trial.

Approximately 100 feet south of the border line of plaintiff's property in Filer are defendant's tracks on its right of way, running east and west. Defendant's depot in Filer is a few hundred feet west of a highway intersecting its tracks and bordering plaintiff's property on the west. Plaintiff testified that on August 10, 1927, about 8 o'clock in the evening, he saw one of defendant's locomotives make a flying switch east of the highway crossing, emitting sparks. It was not dark at the time. Plaintiff said there were dry weeds on the right of way. Between 10 and 11 o'clock the morning after, August 11, 1927, some fifteen hours after the train had passed, a fire occurred adjacent to defendant's right of way injuring 32 trees in plaintiff's orchard. Neither plaintiff nor any of his witnesses saw the fire start and did not know what caused it. At the time the fire was first observed it was not on the right of way.

Defendant's evidence showed one of its freight trains pulled into Filer about 6:30 P. M. August 10th and left about 8 o'clock, after cutting out a number of cars. The locomotive was stopped about opposite the depot, west of plaintiff's property. The locomotive was shut off as it approached Filer, there being a down grade, and the steam was not working. A screen was over the smokestack, in good condition. The right of way had been cleaned in June or July, and about ten days before the fire the weeds had been burned.

The principal question to be considered is whether the evidence as a whole is of sufficient probative force to be submitted to the jury, and to justify a finding for plaintiff, under the issues drawn by the pleadings. The gist of respondent's cause of action as set forth in his complaint was the following:

"That the defendant so carelessly and negligently ran, managed and operated said locomotive that sparks of fire were thrown from said locomotive and fell upon said weeds and rubbish upon the north side of said right of way and set fire to the same; and that the fire so started burned its way through said weeds to plaintiff's land and set fire to the rye growing in plaintiff's orchard. That the heat of the said fire killed 32 fruit-trees in plaintiff's orchard, whereby the plaintiff was damaged. . . ."

In order for plaintiff to maintain his cause of action it was necessary for him to establish by competent, substantial evidence, direct or circumstantial, that the fire emanated from sparks thrown from defendant's locomotive and was communicated to plaintiff's property. No presumption of negligence would arise from the mere fact that defendant's train passed near the place at which a fire later occurred. (Thorgrimson v. Northern P. Ry. Co., 64 Wash. 500, 117 P. 406, 407.) Proof that the fire was set from sparks thrown by defendant's locomotive and communicated to plaintiff's property, resulting in damage or destruction, would serve to establish a prima facie case and raise a presumption of negligence, casting the burden of proof upon appellant to rebut the same. (Osburn v. Oregon R. R. etc. Co., 15 Idaho 478, 483, 16 Ann. Cas. 879, 98 P. 627, 19 L. R. A., N. S., 742; Fodey v. Northern P. Ry. Co., 21 Idaho 713, 123 P. 835.)

Finding that the origin of the fire was from sparks thrown by defendant's locomotive must rest upon something more...