Preece v. Rio Grande Western Ry. Co.

• Decision Date: 31 March 1902
• Docket Number: 1335
• Citation: 68 P. 413,24 Utah 493
• Court: Utah Supreme Court
• Parties: JOHN PREECE, Respondent, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, a Corporation, Appellant

68 P. 413

24 Utah 493

JOHN PREECE, Respondent, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, a Corporation, Appellant

No. 1335

Supreme Court of Utah

March 31, 1902

Appeal from the Second District Court, Davis County.--Hon. H. H Rolapp, Judge.

Action to recover damages for the destruction of the plaintiff's barn and hay by fire alleged to have been caused by sparks from the defendant's engine. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED.

Messrs Bennett, Sutherland, Van Cott & Allison for appellant.

Assuming that this fire was caused by the defendant's engine, then the fire resulted purely from an accident caused entirely by the very heavy wind, and was not the result of any negligence. The defendant is liable for negligence, but it is not liable for a mere accident. 1 Shear. & Red. Neg., sec 16; Brown v. Kendall, 6 Cush. (Mass.) 292.

According to the weight of authority, the starting of a fire by a railroad engine is presumptively negligent, and the burden is then on the company to show that its appliances were in good order, and that the operation was careful. When this is done, the burden is then on the plaintiff to show that nevertheless there was negligence, and if this is not done a case is not made. Menomonie, etc., Co. v. Milwaukee, etc., Co., 65 N.W. 176 (Wis. 1895); New York, etc., Co. v. Boltz, 36 N.E. 414 (Ind. 1894); Koontz v. Oregon, etc., Co., 23 P. 820 (Or. 1890); Missouri, etc., Co. v. Stafford, 31 S.W. 319 (Texas 1895); Kelsey v. Chicago, etc., Co., 45 N.W. 204 (South Dak. 1890); Spalding v. Chicago, etc., Co., 33 Wis. 582; Ruffner v. Cincinnati Co., 34 O. St. 96; 5 A. S. R. (Texas), 74; Edrington v. Louisville, etc., Co., 6 So. 19.

David Evans, Esq., P. C. Evans, Esq., and A. G. Horn, Esq., for respondent.

BASKIN, J. BARTCH, J., concurs. MINER, C. J., concurs in result.

OPINION

BASKIN, J.

--The complaint alleges "that on or about the tenth day of September, A. D. 1900, the said defendant operated and ran along its track a locomotive engine and train of cars in said county so carelessly and negligently that, in passing near the said barn and hay aforesaid, it permitted burning sparks, cinders, and coals to escape from said engine, which communicated fire to the barn and hay of said plaintiff, so situated in said county, thereby, and by reason of which, and by reason of said engine being so constructed and disordered that sparks and coals of fire were emitted therefrom, the said barn and hay of the said plaintiff were consumed by fire and totally destroyed, to the damage of the plaintiff in the sum of two thousand dollars." The answer is a general denial. The jury found for the plaintiff, and judgment was rendered against the defendant, from which it appeals.

The appellant contends that the plaintiff's evidence simply made out a prima facie case, which was overcome by evidence introduced by defendant which was not contradicted, and showed that defendant's engine was provided with the best mechanical contrivances and was carefully managed, and that therefore no issue of fact was presented for the jury to pass upon, and that the judgment is unsupported by evidence. Appellant's counsel cite, as supporting this contention many cases, among which is Kelsey v. Railway Co. (S.D.), 45 N.W. 204, 207. In the opinion delivered in that case it is said: "Recognizing this rule, the defendant in the trial of this cause below assumed this burden of proof after the plaintiff had rested, and introduced testimony to prove that the engine from which the fire was supposed to have originated was run with care, and was under the management of skilled and experienced operatives, and that it was supplied with all modern appliances and appurtenances to prevent the escape of sparks or fire, and was properly constructed. Upon these facts there seems to have been no dispute. The plaintiff, by proving that the defendant's locomotive engine had set fire to dry grass or other...