Roundtree v. Mount Hood R. Co.

• Decision Date: 16 October 1917
• Citation: 86 Or. 147,168 P. 61
• Parties: ROUNDTREE ET AL. v. MOUNT HOOD R. CO. ET AL.
• Court: Oregon Supreme Court

168 P. 61

86 Or. 147

ROUNDTREE ET AL. v. MOUNT HOOD R. CO. ET AL.

Supreme Court of Oregon

October 16, 1917

Department 1.

Appeal from Circuit Court, Hood River County; W. L. Bradshaw, Judge.

Action by W. H. Roundtree and others against the Mount Hood Railroad Company and another. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

The Mount Hood Railroad Company operates a railway line between Hood River and Parkdale. The plaintiffs own an orchard and some timber land near Holstein, a station on the railway line. On September 4, 1915, a train consisting of an engine nine freight cars, a fish car, and a combination baggage and passenger coach was proceeding from the south towards the station of Holstein and on its way to Hood River, when a fire was discovered on the right of way on the west side of the track and about 100 yards south of Holstein. Several persons who had been riding in the fish car and in the passenger coach alighted and attempted to extinguish the flames. All efforts to quench the fire failed and it ran along the west side of the right of way to a point north of the station of Holstein, and then spread to the east side of the right of way where the fire escaped from the right of way and finally reached the plaintiffs' premises, located a short distance east of the right of way, and damaged their timber and orchard. Approaching Holstein from the south the railroad track is on an upgrade and runs in a northeasterly direction.

The complaint charges that the company "negligently suffered and permitted the said right of way of defendant corporation in the vicinity of said orchard and timber of plaintiffs to become and remain littered with dry leaves, grass, twigs pine needles, and other highly combustible material" and that "while said right of way was in such condition as aforesaid, sparks and fire from the engines and furnaces of defendant corporation" were "suffered and permitted to escape therefrom and to fall in and upon said combustible matter, and to set fire thereto, on and along the right of way of said defendant corporation"; and that the defendant negligently permitted the fire to escape from its right of way and spread to the premises owned by the plaintiffs.

The answer denied the accusations of negligence, and affirmatively alleged that a fire had been burning west of the right of way on land owned by persons other than the defendant; that a wind blowing from the west carried sparks from this fire and thus caused the fire which eventually caused the damage complained of. The plaintiffs had a judgment and the defendant appealed. The denial of a motion for a nonsuit when the plaintiffs closed their case in chief the refusal to direct a verdict for the defendant, and the giving of two instructions are assigned as error. The first instruction complained of by the defendant reads thus:

"I further instruct you that if you find from the evidence that combustible material was negligently allowed by the defendant to accumulate upon its right of way, and that such material was ignited soon or immediately after the passing of defendant's engine, unless it can be reasonably inferred by you, from the evidence, that the fire was caused in some other manner, creates a presumption in favor of plaintiffs that it was caused by fire from defendant's passing engine, and I further charge you that this presumption remains with the plaintiffs until you are satisfied by the evidence, if such evidence there be that the fire did not occur from the passing engine, and unless such presumption is overcome as I have stated, it will be your duty to find for the plaintiffs."

The other instruction was as follows:

"You are instructed that it is the duty of the defendant company to exercise reasonable care to keep its right of way, at all points adjoining the property of others, free from combustible materials which are liable to become ignited from passing trains, and should you believe, from the evidence, that plaintiffs' property was damaged because of a fire which originated on the right of way of the railroad company, through fire escaping from a passing engine, which thereafter spread to plaintiffs' premises, then it is immaterial whether the engine of the railroad company was properly equipped or not, and it is likewise immaterial, should you find that the fire which caused the injury escaped from the right of way of the railroad company under the circumstances just stated, whether the employés in charge of the engine of the railroad company were skillful and careful, or negligent and careless in the operation of said railroad company's engine, and your verdict should be for the plaintiffs in either case should you find that the fire escaped from the right of way of the railroad company, after having been set through fire escaping from a passing engine."

B. S. Huntington, of Portland (E. C. Smith, of Hood River, and Huntington & Wilson, of Portland, on the brief), for appellants. A. J. Derby, of Hood River (Jesse Stearns, of Hood River, on the brief), for respondents.

HARRIS, J. (after stating the facts as above).

Evidence was offered by both the plaintiffs and the defendant after the court denied the motion of the defendant for a nonsuit, and hence the question for decision is whether on the whole record as made by all the evidence of all the parties there was sufficient evidence to carry the case to the jury.

Even though it be assumed that the court erred in denying the motion for a nonsuit, the error was cured if sufficient evidence was afterwards offered; and if, when both parties rested, there was enough evidence to take the case to the jury it was the duty of the court to deny the motion for a directed verdict. Trickey v. Clark, 50 Or. 516, 519, 93 P. 457.

It is conceded that the track approaches Holstein from the south on an upgrade and that the engine was working hard while ascending the hill. The engineer testified that they had a train "of about 11 cars, 11 or 12, which is about all that engine will handle over that hill into Holstein." The conductor was the first person on the train to observe the fire. He was in the fish car, and says that when he first saw the fire it was about three car lengths ahead of him. Other persons in the fish car and in the passenger coach saw the fire when they came about opposite it, and some of these persons immediately alighted from the train, which was only going at the rate of about four miles an hour, and commenced to fight the fire with wet sacks that had been used for the purpose of wrapping ice in the fish car. When first observed by these persons who had been riding on the train, the fire covered a circular area variously estimated at from 10 to 30 feet in diameter, with the nearest edge from 10 to 20 feet from the westerly rail. There were three witnesses who were standing in an orchard about a quarter of a mile east of the right of way. Their attention was attracted to the train by reason of the fact that the engine was laboring hard to pull the train up the hill. These three witnesses stood at a point slightly elevated above the right of way so that as the engine worked up the hill they could see the right of way between the front of the engine and the station of Holstein, and yet no one of them observed any sign of a fire until they saw smoke arising above the train and on the west side of it about one or two car lengths back of the tender; and when the train passed the point where they noticed the smoke they saw that there was a fire and two of them ran down to the place. The engineer had sent the fireman out on the dome of the engine to scrape sand out of the sand box so that the sand would feed freely and enable the engineer to prevent the wheels of the hard-pulling engine from slipping on the rails. The fireman worked on the left-hand side of the engine with one hand in the sand box and did not observe a...