Marquette, H. & O.R. Co. v. Spear

• Decision Date: 23 June 1880
• Citation: 44 Mich. 169,6 N.W. 202
• Parties: MARQ., HOUGHT. & ONT. R. CO. v. SPEAR and another.
• Court: Michigan Supreme Court

6 N.W. 202

44 Mich. 169

MARQ., HOUGHT. & ONT. R. CO. v. SPEAR and another.

Supreme Court of Michigan

June 23, 1880

One who invites another to bring upon his premises for use a dangerous implement, knowing it to be such, will take upon himself the consequences which naturally follow. The owner of a warehouse owned a railroad track, running on his own premises near it, and employed a railroad company to send an engine to draw cars over it for their accommodation. The engine threw off sparks badly, and this they observed and complained of, but nevertheless continued to make use of it for a long time. At last the warehouse was set on fire and burned from the sparks emitted by it. Held, that the owner had no redress against the railroad company for the burning. It is immaterial that the railroad company, on repeated application made that it should repair the engine, had promised to do so "sometime," the use continuing thereafter, with the knowledge of the plaintiffs, and on their own application.

Error to Marquette.

W.P. Healy, for plaintiff.

Dan. H. Ball, for defendants.

COOLEY J.

Defendants in error sued the railroad company in case for negligently setting fire to a quantity of hay and a warehouse, whereby they were destroyed. The facts, as they were developed on the trial, were, that plaintiffs owned the warehouse and a quantity of hay stored near it, on premises of their own, and that upon these premises they had caused to be laid a track upon which railroad engines and cars might be, and had been running for their accommodation for a long time before the fire. When plaintiffs had occasion for cars they had an arrangement with the railroad company to draw them in and take them out. A particular engine belonging to the railroad company, named Birchrod, was made use of for this purpose and about the time of the fire it was going in and out several times a day. One of the plaintiffs testified that on the occasion of the fire she went in and out, throwing sparks. "The engine went out with one train of cars throwing sparks, as she was accustomed to do all the time." He was sitting in the office, watching her, and saw as she passed that a spark had communicated fire to the hay. There was quite a brisk breeze blowing at the time. The engine "was noted for throwing sparks, and had two or three times before set loose hay on fire on the dock. She had set fire, thrown fire around on the dock, and set loose hay on fire before on the dock that season--that spring. She was in the habit of throwing sparks in going up the hill, when she puffed hard, and had a load behind her, She threw live cinders, I suppose, a-quarter or...