Reading & Columbia Railroad Co. v. Latshaw

• Decision Date: 15 March 1880
• Citation: 93 Pa. 449
• Parties: Reading and Columbia Railroad Company <I>versus</I> Latshaw.
• Court: Pennsylvania Supreme Court

93 Pa. 449

Reading and Columbia Railroad Company versus Latshaw.

Supreme Court of Pennsylvania.

March 5, 1880.

March 15, 1880.

March 5th 1880.

Before SHARSWOOD, C. J., GORDON, PAXSON, TRUNKEY and STERRETT, JJ. MERCUR and GREEN, JJ., absent

Error to the Court of Common Pleas of Berks county: Of July Term 1879, No. 16.

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George F. Baer, for plaintiff in error.—The rule laid down in Railroad Co. v. Hendrickson, 30 P. F. Smith 190, that "when a railroad company uses the most approved spark-arrester, and proper care and vigilance in the running of engines, and the landowner's barn, or haystack, or meadow takes fire, he has no remedy," is of no practical protection to railroad companies, so long as its application is referred to the decision of a jury.

One great fault of the charge was, that it magnified the facts proven, and supplemented them with allegations of negligence not proven. There was no evidence that "as the engine travelled an unusual quantity of sparks was thrown out;" that it was running faster than usual; that there was carelessness in handling the fire, or that the spark-arrester or machinery was in any way defective.

From mere testimony that the grass along the railroad was seen burning on a day after a train passed, it is not proper to allow a jury to infer negligence against the uncontradicted evidence of defendants, that the spark-arrester was perfect and the fires properly handled: Railroad Co. v. Hendrickson, supra; Pennsylvania Railroad Co. v. Stranahan, 29 P. F. Smith 405; Railroad Co. v. Yerger, 23 Id. 121.

A. G. Green, for defendant in error.—The defendants' contention is, that because the testimony of the company's witnesses as to the perfect condition of the spark-arrester, and the careful management of the engine on the day of the fire, was not contradicted, therefore, there was nothing for the jury to pass upon. The trial was by jury; and whether uncontradicted or not, it was still for the jury to say whether they believed this evidence. The plaintiff gave evidence of a number of fires kindled, as he alleged, by sparks from the freight train. This was evidence of negligence. The testimony in regard to the spark-arrester was intended to contradict this evidence. It was certainly proper for the jury to say whether they believed this testimony or not. [See Jennings v. Railroad Co., ante, page 337, and Schultz v. Railroad Co., ante, page 341. — Rep.]

Mr. Justice STERRETT delivered the opinion of the court, March 15th 1880.

It must be conceded that the plaintiff below was not entitled to recover without sufficient evidence of negligence, on the part of the railroad company, in consequence of which his property was injured or destroyed. The only allegations of negligence were the failure of the company to use a sufficient spark-arrester, and carelessness in the management of its engine. There was not a particle of direct evidence of either, and the jury was asked to infer one or both from the fact that the dry grass, stubble, &c., were ignited in several places on both sides of the road. The substance of the testimony, on the part of the plaintiff was, that on the 5th of April, when the fire occurred, the weather was dry and windy, and the dead grass, &c., along the line of...