Osburn v. Oregon Railraod & Navigation Co.

• Decision Date: 01 December 1908
• Citation: 15 Idaho 478,98 P. 627
• Parties: S. V. OSBURN, Respondent, v. THE OREGON RAILROAD AND NAVIGATION COMPANY, Appellant
• Court: Idaho Supreme Court

98 P. 627

15 Idaho 478

S. V. OSBURN, Respondent, v. THE OREGON RAILROAD AND NAVIGATION COMPANY, Appellant

Supreme Court of Idaho

December 1, 1908

NEGLIGENCE-FIRES SET BY LOCOMOTIVES-PROOF OF FIRE-PRESUMPTION OF NEGLIGENCE-BURDEN OF PROOF-GIST OF THE ACTION.

1. In an action against a railroad company for damages caused by fire set from an engine running on defendant's road where the engine that must have set the fire is identified and it is shown by defendant's witnesses that the particular engine that set the fire is no better than any of its other engines, it is not error to admit evidence of the setting of other fires a short time previous to the destruction of plaintiff's property.

2. Under such conditions and circumstances, the reasonable inference of fact would be that the identified engine would be as likely to throw igniting sparks and live coals and set the fire as was any of the other of the company's engines that are shown to have emitted sparks and fire about the same time.

3. In an action against a railroad company for the destruction of property by fire set by sparks emitted from the company's locomotive, it is sufficient to establish a prima facie case for the plaintiff to show that fire has been communicated from the company's engine to his property, which resulted in its damage or destruction, and such proof, when made raises the presumption of negligence of the company either in the construction and equipment or management and operation of its engine, and casts the burden upon the defendant of rebutting this presumption of negligence.

4. In such case, the fact of the setting of the fire by defendant's locomotive having been proven by circumstantial evidence does not prevent the presumption of negligence on the part of the defendant arising under the rule casting the burden of rebutting such presumption on the defendant. A fact may be established just as fully by circumstantial evidence as by direct and positive evidence. In the former case, however, the proof of the one fact inevitably resulted, and is inferred from the proven existence of certain other facts. It does not arise, however by operation of law or as a presumption thereof.

5. When the presumption of negligence which thus arises, the burden of rebutting which rests on the defendant, is repelled and rebutted by proof of proper construction and the use of proper appliances and careful management and operation, the plaintiff cannot recover without producing proof of actual negligence or want of ordinary care.

6. In cases for damages caused by fires set from locomotives of a railroad company, negligence is the gist of the action.

7. Facts in this case examined and considered and held sufficient to go to the jury.

(Syllabus by the court.)

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. W. W. Woods, Judge.

Action by the plaintiff against the defendant for damages caused by the destruction of his property by fire set by defendant's locomotive. Judgment for plaintiff and defendant appealed. Affirmed.

Judgment affirmed. Costs in favor of respondent. Petition for rehearing denied.

Henry F. Conner, for Appellant.

Assuming that the presumption of negligent construction or operation of defendant's engine has arisen, defendant has rebutted the presumption by the introduction of uncontradicted evidence that defendant's locomotive was properly equipped and properly handled on the day plaintiff's barn was burned, and plaintiff entirely failed to introduce any evidence of actual negligence on the part of the defendant to disprove defendant's evidence of careful operation and appliances in proper condition. When the presumption is thus repelled by proof of proper construction, use of proper appliances and careful management, plaintiff cannot recover without proof of negligence or want of ordinary care. (Alabama Co. v. Taylor, 129 Ala. 238, 29 So. 673; Preece v. Rio Grande Ry. Co., 24 Utah 493, 68 P. 413; Menominee etc. Co. v. Milwaukee Ry. Co., 91 Wis. 447, 65 N.W. 179; Creighton v. Chicago Ry. Co., 68 Neb. 456, 94 N.W. 527; Missouri P. Ry. Co. v. Stafford (Tex. Cr. App.), 31 S.W. 319; Gainesville etc. Ry. Co. v. Edmonson, 101 Ga. 747, 29 S.E. 213; Louisville etc. Ry. v. Marbury Lumber Co., 125 Ala. 237, 28 So. 438, 441, 50 L. R. A. 620; Missouri K. & T. Ry. Co. v. Fulmore et al. (Tex. Cr. App.), 29 S.W. 688.)

The evidence of the defendants as to the care exercised in construction and operation of appliances being undisputed, it becomes a question of law, whether the defendant is liable. The presumption of negligence arising from the setting of fire by an engine is one of law, and whether such presumption has been fully met and overturned, is, in the first instance, a question of law for the court. (Smith v. Northern P. Ry. Co., 3 N.D. 17, 22, 53 N.W. 173; Spaulding v. Chicago & N.W. Ry. Co., 30 Wis. 110, 11 Am. Rep. 550; Spaulding v. Chicago N.W. Ry. Co., 33 Wis. 582, 590; Woodward v. Chicago Ry. Co., 145 F. 577, 580; Menominee Co. v. Milwaukee etc. Co., supra; Chicago etc. Ry. Co. v. Packwood, 59 Miss. 280; 7 Am. & Eng. Ry. Cas. 584; Rosen v. Chicago etc. Ry., 83 F. 300, 27 C. C. A. 534; Louisville etc. Ry. v. Marbury Lumber Co., 125 Ala. 237, 28 So. 438, 442, 50 L. R. A. 620.)

A. G. Kerns and H. E. Worstell, for Respondent.

There is sufficient evidence to sustain the verdict of the jury, and where there is a substantial conflict in the evidence the findings of the jury will not be disturbed. (Buckle v. McConaghy, 12 Idaho 733, 88 P. 100; Robbins v. Porter, 12 Idaho 738, 88 P. 86; Heckman v. Espey, 12 Idaho 755, 88 P. 80; Gumaer v. White Pine Lumber Co., 11 Idaho 591, 83 P. 771; Robertson v. Moore, 10 Idaho 115, 77 P. 218; Deeds v. Stephens, 10 Idaho 332, 79 P. 77; Kendrick Bank v. Northern Pacific Ry., 10 Idaho 483, 79 P. 457; Spencer v. Morgan, 10 Idaho 542, 79 P. 459; Parke v. Boulware, 9 Idaho 225, 73 P. 19.)

"It is sufficient, to establish a prima facie case, for the plaintiff to show that fire has been communicated from an engine of the railroad company to his property resulting in the damage or destruction thereof." (Anderson v. Oregon R. R. Co., 45 Ore. 211, 77 P. 119.)

"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." (Koontz v. Oregon Ry. & N. Co., 20 Ore. 3, 23 P. 820; Manchester Assur. Co. v. Oregon Ry. & Nav. Co., 46 Ore. 162, 114 Am. St. Rep. 863, 79 P. 60, 69 L. R. A. 475.)

"The evidence was sufficient to warrant the inference that the fire was caused by the defendant's passing train, as alleged in the complaint." (Van Steuben v. Central R. Co., 178 Pa. 367, 35 A. 992, 34 L. R. A. 577; Union Pacific Ry. v. DeBusk, 12 Colo. 294, 13 Am. St. Rep. 221, 20 P. 752, 3 L. R. A. 350; Campbell v. Missouri P. R. Co., 121 Mo. 340, 42 Am. St. Rep. 530, 25 S.W. 936, 25 L. R. A. 75; Henderson v. Phil. & Reading R. Co., 144 Pa. 461, 27 Am. St. Rep. 652, 22 A. 851, 16 L. R. A. 299.)

AILSHIE, C. J. Sullivan, J., and Stewart, J., concur.

OPINION

AILSHIE, C. J.

This action was instituted by the plaintiff to recover the sum of $ 1,600, the value of a barn and two bob-sleds alleged to have been destroyed by fire set from the defendant's locomotive. The plaintiff's barn was located on lot 4, in block 24, of the town of Osburn, Shoshone county, and was 45 feet from the center of the railroad track and 20 feet from the defendant's right of way. On the morning of August 4, 1907, the defendant ran an excursion train over its road by this property, and soon after the train had passed the fire broke out on the roof of the barn on the side next to the railroad track, and the building and bob-sleds were destroyed before the fire could be controlled. A verdict was rendered by the jury in favor of the plaintiff for the sum of $ 750. The defendant moved for a new trial and appealed from the judgment and order denying its motion.

On the trial of the case the plaintiff was allowed to prove that at other times shortly prior to this fire the defendant company's locomotive had emitted sparks and live coals and thrown them to a great distance, thereby setting other fires along the line of its road. Numerous fires were shown to have been set in this manner in the vicinity of this property, and it was also shown that live sparks and coals had been thrown as much as 100 feet, and crossing entirely over buildings and dropping in the street on the opposite side.

Counsel for appellant assigns as error the action of the court in admitting this evidence, and contends that where the engine which alone could have caused the fire is identified evidence that other engines of the defendant at other times and places set fires or threw igniting sparks is wholly inadmissible, unless there is proof that the other engines were in the same condition and operated in the same way as the engine that is shown to have set the fire. In support of this proposition, counsel cite the following authorities: Lesser Cotton Co. v. St. Louis etc. Ry. Co., 114 F. 133, 52 C.C.A. 95; Shelly v. Phila. Ry. Co., 211 Pa. 160, 60 A. 581; McFarland v. Gulf etc. Ry. Co. (Tex. Cr. App.), 88 S.W. 450; Henderson v. Phila. & Reading Ry. Co., 144 Pa. 461, 27 Am. St. Rep. 652, 22 A. 851, 16 L. R. A. 299; San Antonio etc. Ry. Co. v. Home Ins. Co. (Tex. Cr. App.), 70 S.W. 999; Texas Midland Ry. Co. v. Moore (Tex. Cr. App.), 74 S.W. 942; Crissey & Fowler Lbr. Co. v. Denver etc. R. Co., 17 Colo. App. 275, 68 P. 670; Collins v. New York etc. Ry. Co., 109 N.Y. 243, 16 N.E. 50. Plaintiff did not know and was not able to identify the particular engine that set this fire, but on the trial it was admitted by counsel for the railroad...