Russell v. Chi., M. & St. P. Ry. Co.

• Decision Date: 06 February 1923
• Docket Number: No. 34967.,34967.
• Citation: 191 N.W. 806,195 Iowa 993
• Court: Iowa Supreme Court
• Parties: RUSSELL ET AL. v. CHICAGO, M. & ST. P. RY. CO.

195 Iowa 993

191 N.W. 806

RUSSELL ET AL.

v.CHICAGO, M. & ST. P. RY. CO.

No. 34967.

Supreme Court of Iowa.

Feb. 6, 1923.

Appeal from District Court, Jones County; F. L. Anderson, Judge.

Action brought by the owner and certain insurance companies to recover the value of a livery stock destroyed by fire, it being claimed that the fire was set out by a locomotive of the defendant railway company. Trial to a jury. Verdict for plaintiffs for $4,500. After the verdict the court apportioned the amount of the recovery among the plaintiffs, and entered judgment against defendant, and in favor of plaintiff Home Insurance Company in the sum of $1,748.45, and in favor of plaintiff Hartford Fire Insurance Company in the sum of $1,000, and in favor of plaintiff North British & Mercantile Insurance Company in the sum of $616.25, and in favor of plaintiff Russell, the owner, in the sum of $1,135.30. The several amounts so entered in favor of the insurance companies were the sums paid Russell by them, under settlements made by the insurance companies because of fire insurance policies covering the property, and which they had paid to Russell, the owner, as insured. The defendant appeals. Affirmed.Hughes, Taylor & O'Brien, of Des Moines, and B. E. Rhinehart, of Anamosa, for appellant.

C. J. Cash, of Anamosa, and Bates, Hicks & Folonie, of Chicago, Ill., for appellees.

PRESTON, C. J.

In addition to the matters before referred to, it was alleged in general terms that, through negligence on the part of defendant in the operation of a locomotive through the city of Anamosa, sparks and live coals were permitted to escape and set fire to the property and destroy it; that the insurance companies are subrogated to Russell's rights against defendant to the extent of the settlements; that Russell's loss above the amounts received from the insurance companies was more than $4,000.

Answering, defendants denied generally and alleged that the engine operated by defendant was operated with due care, and equipped with the best-known apparatus to prevent the escape of sparks and fire, and that said apparatus was in perfect condition.

The only evidence offered by defendant, on the issues raised by the general denial, was as to the cause of the fire, the sufficiency of the evidence to show that the fire originated from the engine of the defendant, and affirmative testimony as to the proper equipment of the engine and its proper operation. No other questions of fact were at issue. A question of law was raised as to the right of insurance companies who claimed they had been subrogated by payment of the loss in part. Defendant offered no evidence on the general denial as to the fact of the fire, nor to the amount of the loss, and no testimony except that offered by plaintiff as to the cause of the fire.

1. The first error assigned is the refusal of the court to direct a verdict in favor of defendant on the ground that the plaintiffs failed to prove that the fire was set out by defendant's locomotive. Another of the errors may be considered with this one. It is that plaintiffs failed to show that defendant was negligent in the operation of its locomotive, and that therefore the court erred in overruling the defendant's motion on that ground.

The barn and contents was destroyed by fire on the evening of May 18, 1917. The building was not owned by the occupant, Russell. It was on the east side of Huber street, which extends north and south, the barn facing west. Some distance south of the barn was defendant's railroad side track, and next south of this track was the freight depot. The main track was south of the freight depot, and extended through Anamosa in a general east and west direction, turning slightly to the north and nearer the livery barn as it proceeded west from the passenger depot, which was located one block east of Huber street. The southwest corner of the barn was 126 feet north of the center of the main track, and the southeast corner of the barn 142 feet north of the center of the main track. The size of the barn was 68x90 feet, the long way extending east and west. The part of the barn next to the street was used for vehicles and an office, and the rear or east part of the barn was used as a horse barn. The front of the barn was one story, but over the horse barn was a hay mow. Defendant's passenger train left Anamosa at 7:22 p. m. on the date in question, proceeding westward along the main track before described. There is a slight upgrade from the passenger station to the freight house. There is evidence that the engine of the passenger train was working hard, starting the train as it left the passenger station, and sparks were seen coming from the smokestack as it passed the freight house. There was a breeze from the southeast at the time of the fire. Within a few minutes after the time the train left, the barn was discovered in flames and the alarm given.

The sun set at 7:16 and the fire was about 7:30. It was still daylight at the time of the fire. The barn was wired for electricity, and that was the method of lighting it, but there were no lights turned on in the barn and no fire burning in any stove and no persons near the barn, except two men sitting outside, when the fire started. Plaintiff's evidence tends to show that the fire was first seen on the top of the barn before the fire alarm was given. From the testimony of defendant's witness Brown, defendant contends that the fire was first seen in the lower part of the barn, in the part where the horses were kept. This witness was sitting on the porch of a hotel on Davis street and only went about half way over to the fire. He says that when he first saw the barn he didn't think it was a fire. It didn't look like it was anything more than an electric light at that time; and then you could see there was a fire--that is, a blaze of some kind, a reflection; that was on the first floor where the horses were; didn't see any fire on the top of the barn until it burst out; when he first saw the fire could see the reflection, but don't know just where the fire was. There was no fire or light of any kind in the barn, nor so far as known in adjoining buildings. The sparks from the burning barn ignited another barn several hundred feet to the northwest, and embers were carried some miles to the northwest in the same direction as the sparks were seen going towards the Russell barn. The evidence shows that the engine of defendant was throwing sparks when it passed the barn a few minutes before the fire was discovered, and that the wind was carrying the sparks toward the barn.

[1] The foregoing is a brief summary of the testimony. It is very clear that the court could not say as a matter of law, that the fire did not originate from the sparks from defendant's engine. The jury could have found that it did so originate. This being so, plaintiff made a case for the jury on the question of negligence, and it was still a question for the jury after the defendant's evidence tending to show due care and proper operation had been introduced. Counsel for appellant state in argument that it is probably the rule in this state that the presumption of negligence arising from a showing on the part of the plaintiff that a railway company set out a fire, has the effect of substantive evidence and is enough to create a conflict for the determination of a jury on the question of the railway company's negligence, and that, in view of this rule of law, they will not take the time of the court in arguing that the defendant was entitled to a directed verdict on that ground. The instructions are not challenged. There was no error in overruling the motion to direct a verdict on these grounds.

[2] 2. It is claimed that the court permitted the introduction of evidence of witnesses who testified over objection to having seen sparks from a locomotive on other occasions, and under different circumstances. Appellant cites Wilkins v. Railway, 96 Iowa, 668, 65 N. W. 987, where it was held substantially without proof that cars on all lines are of the same character and operated under the same conditions, it cannot be shown how far a car could be heard on one line by testimony how far cars could be heard on another. The rule was again stated in Kirby v. Railway, 173 Iowa, 144, 157, 155 N. W. 343, an explosion case, citing the Wilkins Case, that as a rule testimony as to similar explosions is inadmissible for the purpose of showing negligence, and that the conditions and circumstances must be substantially the same in each instance. It was also said if the appliances or devices were of the same general type, and so constructed and operated that no harm could befall save that they were of faulty design or construction, doubtless the explosion or bursting of one under conditions similar to those attending the operation of another, might be given probative force. In the instant case, two witnesses testified on this subject. Reference to the evidence of one will be sufficient. His evidence was:

Q. What observation, if any, have you made relative to an engine upon the evening passenger train, which in 1917, within a reasonable time before and after May 18th of that year, departed from Anamosa around 7:06 to 7:22 p. m. at that time, relative to its throwing sparks or cinders? A. I have sat on the bench or stood in the barn in front of the office at the livery barn and seen live sparks fall as far north as the livery barn driveway and the office doors; that is approximately 150 to 160 feet from the main...