Russell v. Boston & M. R. R.

• Decision Date: 06 March 1928
• Citation: 141 A. 227
• Parties: RUSSELL v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

141 A. 227

RUSSELL

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Rockingham.

March 6, 1928.

Transferred from Superior Court, Rockingham County; Matthews, Judge.

Case by Herbert Russell against the Boston & Maine Railroad for fire damage, under P. L. c. 250, § 1. Verdict for plaintiff. Transferred on defendant's exceptions to the denial of its motion for nonsuit and a directed verdict, and to certain rulings of court on questions of evidence. Judgment for defendant.

Case for fire damage, under P. L. c. 250, § 1. Trial by jury. Verdict for the plaintiff.

The buildings which were destroyed stood upon the northerly side of the defendant's tracks, facing a highway which intersected the railroad at a point directly in front of the plaintiff's barn and about 150 feet from it. Opposite these buildings there is a curve in the track and a grade of .8 of 1 per cent. The shortest distance between the plaintiff's barn and the nearest rail was 88 feet. Shortly before noon on the day of the fire, five locomotives of the defendant, running "light"; i. e., without cars attached, passed the plaintiff's premises. The first of these engines left Windham Station which is about 1,031 feet from the plaintiff's house, at 11:27 a. m., and the last one at 11:58 a. m. Plaintiff's evidence tended to prove that the fire was first discovered at about 12:20 p. m. upon the roof of the barn, on the south side next the track, and that at this time there was a wind blowing, at the rate of 10 miles per hour, from the south or southwest, across the track toward the buildings. An expert witness called by the plaintiff testified that a light engine might emit sparks when passing the point in question. Other facts appear in the opinion.

Transferred by Matthews, J., upon the defendant's exceptions to the denial of its motions for a nonsuit and a directed verdict, and to certain rulings of the court upon questions of evidence.

Chester T. Woodbury, of Salem, and William H. Sleeper, of Exeter (Mr. Sleeper, orally), for plaintiff.

Hughes & Burns, of Dover (George T. Hughes, of Dover, orally), for defendant.

BRANCH, J. The essential facts which the plaintiff undertook to prove as a part of his case were (1) that the fire was discovered within a short time after the passage of defendant's locomotives, (2) that it started upon the side of the barn roof nearest to the tracks, (3) that the wind was blowing from the track toward the buildings, and (4) that the engines which passed might have emitted sparks. It was apparently conceived by the plaintiff that proof of these facts would justify a finding that the fire was caused by a spark from a locomotive. The defendant not only took issue with the plaintiff upon all the foregoing questions of fact but contested the plaintiff's whole theory upon the fundamental ground that the conclusion which the plaintiff sought to draw from these facts, if established, was invalid. It was the contention of the defendant throughout the trial that it was physically impossible for a spark, discharged from the stack of a light engine operated under the conditions disclosed by the evidence, to reach the necessary height and travel the necessary lateral distance to land on the roof of the barn.

It was the position of the plaintiff that the fire was most probably caused by a spark from the last locomotive to pass his premises, which was of the "mogul" type, and the engineer of this locomotive was called as a witness by the plaintiff. From his testimony it appeared that this engine stopped at Windham, which was a junction point, at a "positive stop post," which was located according to other evidence in the case at about 1,500 feet from the plaintiff's buildings; that in starting from this position he probably "hooked up" his engine, i. e., shortened the cut-off so as to admit only a small quantity of steam to the cylinders, within 20 or 25 feet; that he did not believe he was going over 15 or 20 miles per hour when he passed the Russell place; that he did not think the engine could throw sparks, because "this engine was light, there was very little steam passing through the stack at the time, and exhaust on the fire would be very light." None of the plaintiff's evidence contradicted the testimony of this witness as to the manner in which the engine was operated.

In support of its contention that it was impossible for a spark from this engine to reach the roof of the plaintiff's barn, the defendant drew from plaintiff's witnesses the information that the buildings in question stood upon higher ground than the track, the foundation of the barn being approximately 14 or 15 feet above the rails; that the posts of the barn were 16 feet high, so that the eaves must have been at least 30 feet above the rails, and that the stack of a locomotive of the type in question rises 14 feet above the rails. From the plaintiff's expert, a former locomotive engineer of many years' experience, defendant also elicited testimony that the longest distance from the track to which sparks had ever been carried within his personal knowledge, was 70 feet, in the case of an unusually large spark discharged by a freight locomotive laboring under a heavy load on a steep grade; that the greatest height to which sparks were ever thrown was 25 to 30 feet above the stack, and that this happened when a locomotive was starting or hauling a heavy load ; that any sparks which might be thrown from a light engine traveling at a speed of 15 to 20 miles per hour would not rise more than 5 or 6 feet above the stack.

In order to reach the roof of the barn it is plain that a spark would have to attain an elevation of at least 16 feet above the stack and maintain that elevation during a lateral flight of at least 90 feet, since the plaintiff's barn stood 88 feet from the nearest rail at its nearest point. The testimony of the plaintiffs expert supported the defendant's contention that it was impossible for a spark from a light engine to reach the height necessary to accomplish this journey, and indicated that a lateral flight of 90 feet would be unprecedented in his experience. The plaintiff produced no evidence that such an occurrence was possible under the conditions which existed at the time of the fire, and it must therefore be determined whether such evidence was essential to his case.

In many simple cases, common knowledge may render unnecessary the production of evidence. When a fire starts on the ground close to ft railroad track soon after the passage of a train, it may be a legitimate inference that the fire was set by the locomotive. In such case, common knowledge of "the fact that locomotives frequently emit sparks which fall near the tracks causing fires" (Staples v. Railroad, 74 N. H. 499, 500, 69 A. 890, 891) furnishes a sufficient, logical, and legal basis for the conclusion. But the height to which sparks can be thrown and the distance to which they can be carried by the wind under a given set of conditions are obviously limited by natural laws, and it cannot be assumed that the limits thus fixed by natural laws are matters of common knowledge. Consequently in a case like the present one which calls for a determination of those limits, common knowledge furnishes no criterion for judgment and evidence becomes indispensable, for it has been held repeatedly in this state that "the law does not permit a jury to find a verdict upon surmises and conjectures, but it must be founded upon some substantial evidence." Nadeau v. Stevens, 79 N. H. 502, 504, 111 A. 749, 750, and cases cited. The law "requires an open, visible connection between the principal and evidentiary facts and the deductions from them, and does not permit a decision to be made on remote inferences." United States v. Ross, 92 U. S. 281, 283, 284 (23 L. Ed. 707): Deschenes v. Railroad, 69 N. H. 285, 290, 46 A. 467; Clark v. Sharpe, 76 N. H. 446, 447, 83 A. 1090, 41 L R. A. (N. S.) 47, and cases cited. Proof of a bare possibility that an injury may be due to a given eause does not justify a finding that it was so caused. The evidence must furnish some logical basis for a finding that the result was probably due to the alleged cause. Reynolds v. Fiber Co., 73 N. H. 126, 59 A. 615; Dame v. Car Works, 71 N. H. 407, 52 A. 864; Deschenes v. Railroad, 69 N. H. 285, 46 A. 467. Some evidence tending to establish not only the possibility but also the probability that a spark from one of the defendant's engines was carried to the roof of the plaintiff's barn was, therefore, a necessary component of the plaintiff's case, and in the absence of such evidence he was...