Rosen v. Chicago G. W. Ry. Co.

• Decision Date: 27 September 1897
• Docket Number: 861.
• Parties: ROSEN v. CHICAGO G.W. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

83 F. 300

ROSEN v. CHICAGO G.W. RY. CO.

No. 861.

United States Court of Appeals, Eighth Circuit.

September 27, 1897

Jared How, for plaintiff in error.

Dan W Lawler, for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and RINER, District Judge.

RINER District Judge.

This action was brought by Adolph T. Rosen against the Chicago Great Western Railway Company in the circuit court of the United States for the district of Minnesota to recover damages for the destruction by fire of the plaintiff's building, situated upon land owned by him adjoining the defendant's railroad, in the city of St. Paul. The evidence in the case showed that the plaintiff was the owner of lot No. 27, with the buildings thereon, in block No. 23 of South Park addition No. 10; that the defendant owned and was operating a line of railway running from St. Paul in a southerly direction, through South St. Paul and beyond; that the plaintiff's lot was adjacent to, and on the easterly side of the right of way of the defendant's road; that the building was a large frame building, 50 feet in width by 90 feet in length and 2 1/2 stories in height, with a brick addition thereto 1 1/2 stories high; that the building and addition contained a large amount of machinery, tools material, and appliances, which were owned by the plaintiff and used by him for the purpose of carrying on a tannery and fur-dressing establishment, the building in question being located about 50 feet westerly from the main railway tracks of the defendant company, and that on the 11th of August 1895, within a short time after one of the defendant's trains had passed the plaintiff's building, the building was discovered to be on fire, and was wholly destroyed. There was also evidence offered by the plaintiff tending to show that among the locomotive engines used by the defendant in operating its trains was a small motor engine, known as engine No. 13, which was used by the defendant in drawing suburban trains daily operated by it and at frequent intervals from the city of St. Paul to South St. Paul and beyond, upon the main tracks of its road; that this motor engine No. 13, was used by the defendant on the day that the plaintiff's property was destroyed, and was the engine attached to the train which passed the premises owned by him, in a southerly direction, a short time before the fire was discovered; that the property belonging to the plaintiff was of the value of about $27,000; that, at the time of the passage of the engine and train and of the destruction of the building, a strong breeze was blowing in the locality in which said building was situated, from a westerly direction, across the tracks of the defendant, and towards the building; that South St. Paul was situate about five miles southerly from the city of St. Paul; that the plaintiff's factory was situated about four miles southerly from the main depot of the defendant in the city of St. Paul; that, the region between the city of St. Paul and South St. Paul, through which the defendant's road ran, and upon which a train was then being operated, was devoted largely to manufacturing purposes; that there were a number of manufacturing establishments of various kinds along the tracks of the defendant between the stations mentioned; that, as the engine was passing the building of the plaintiff, it was observed to discharge from its smokestack a large quantity of sparks and cinders, which sparks and cinders fell on and about the building; that the ordinary locomotive road engine of the smallest size used by the defendant in operating trains upon its road was one having cylinders 17 by 24 inches, and drive wheels of 64 inches, in diameter; that the motor engine No. 13 had a cylinder of only 12 by 20 inches, and drive wheels of about 49 inches, in diameter; that the power or capacity of the motor engine was only about one-half that of the smallest sized road engine; that the flues in its boiler were considerably shorter than the ordinary road engine, and its fire box considerably shallower; that in drawing a train of the size which the motor engine was engaged in operating on the 11th of August, 1895, it was necessary to push or work the motor engine much harder than it would have been necessary to have worked or pushed an ordinary road engine of the smallest size drawing the same train; that, in the harder working of the engine, the draught would be much increased; that the engine, when pushed or worked hard, would throw out a larger quantity of sparks and cinders than it would when worked with more moderation; that the quantity of sparks and cinders which would be thrown out in operating any engine when in good repair and condition depended upon the amount of force or power with which such engine was accompanied; and that an engine of the size and capacity of motor engine No. 13, in drawing the train to which it was attached at the time of the fire, would throw out a much larger quantity of sparks and cinders than an ordinary standard road engine even of the smallest size would do in drawing the same train; and that, by reason of its short flues, shallow fire box, and small drive wheels, the draught of the engine was made greater, and sparks and cinders would be carried through and thrown out of the smokestack in much greater quantities and in a much more highly-heated condition in developing the same amount of speed, than would be the case with an ordinary road engine even of the smallest size, having longer flues and a less shallow fire box.

The testimony of the engineer operating engine No. 13 on the day in question was to the effect that the train was a suburban train for the accommodation of passengers, carrying no freight; that on that day, on its south-bound trip, the engine was run in the ordinary manner; that it worked with a light throttle at all times in pulling these trains; that, in his experience, this engine worked better in that way than when it was crowded; that it was an easy matter for this engine to haul this train with two coaches; that it could easily handle three coaches and make its time; that, if there was any grade at the point in question, it was so slight that it could not be seen with the naked eye; that, at the time of passing the plaintiff's factory, he saw no sparks or cinders issuing from the smokestack; that in fact it was not possible to see such sparks or cinders, if any were thrown in daylight, according to his experience of 16 years; that he had no recollection that any such were thrown at the time in question, that he was on the...