Smith v. Cent. Vermont Ry. Co.

• Decision Date: 10 August 1907
• Citation: 67 A. 535,80 Vt. 208
• Court: Vermont Supreme Court
• Parties: SMITH v. CENTRAL VERMONT RY. CO.

67 A. 535

80 Vt. 208

SMITH

v. CENTRAL VERMONT RY. CO.

Supreme Court of Vermont. Orange.

Aug. 10, 1907.

Exceptions from Orange County Court; Waterman, Judge.

Action by William H. Smith against the Central Vermont Railway Company. From a judgment for plaintiff, defendant brings exceptions. Reversed and remanded.

Argued before ROWELL, C. X, and TYLER, MUNSON, and WATSON, JJ.

March M. Wilson, John J. Wilson, and R. M. Harvey, for plaintiff. C. S. Palmer, for defendant.

WATSON, J. The plaintiff seeks to recover damages for loss of buildings and contents by fire alleged to have been started on the defendant's right of way by sparks emitted from its locomotive engines April 1, 1905. A certified transcript of the entire case is made a part of the bill of exceptions, and is to control. The plaintiffs' evidence tended to show that on the day above named a fire was started in the dry grass, weeds, and brush on defendant's right of way, about one-half of a mile north of the railroad station at Bethel; that the land was very dry, and the wind blowing toward the southeast; that the fire burned from the railroad right of way onto the land of William G. Shaw, and from his land the sparks and fire were carried to his barn, setting fire to it, and from Shaw's burning barn to the buildings of the plaintiff, which, with their contents, were destroyed. Without objection the plaintiff introduced evidence tending to show that about that time cinders flew every day from trains being operated on that part of defendant's road; that immediately after the fire a large quantity of coal cinders were found on defendant's land in the locality where the fire started, some of them very near an inch long and half an inch wide, and that like cinders were found also in the adjoining field, 10 or 12 feet from the fence.

R. I. Flint, a civil engineer, and witness called by the plaintiff, testified to certain measurements made by him in June of the next year, and to making a plan which was used as an exhibit in the case; that he was shown a point, and told it was where the fire started Evidence was introduced later in the trial tending to show that the fire did in fact start there. Subject to exception, the witness was permitted to testify that in the locality pointed out "were embers, remains of burned woods and bushes, and cinders," and that by "cinders" he meant "particles of partly burned coal," which he carefully examined. It was essential to the plaintiff's case to show the origin of the fire as alleged. The evidence bearing thereon was all circumstantial. The appearance of the surface where the fire started, with reference to combustible matter partly burned and cinders such as were described by the witness, was relevant evidence upon that issue. The question of remoteness in time was a preliminary one, determined by the trial court, and nothing appears to take it out of the ordinary rule excluding revision.

The plaintiff testified that three days after the fire in question he went over the burned district, on which occasion, when near the place where the fire started, he saw "the 2:30 passenger train" going north; that "cinders flew out and dropped along"; and that after the train passed "there was a little fire in the grass." He was then allowed to testify, against defendant's objection, that he saw this fire not more than two minutes after the train passed, and that it was between the track and the fence, about 200 feet north of where he was standing, as tending to show the dryness of surface, the character, habit, propensity, and poor condition of defendant's locomotives, and that the cinders which escaped from them would set fire to combustible material. It is urged that this was error, since (1) the defendant offered to point out to the plaintiff, and to give a history of, each engine which passed that point on the day of the fire in question, and to give him an opportunity to inspect the same, but the plaintiff neglected to avail himself thereof; and (2) the evidence related to another engine and subsequent to the fire in question. There was no evidence that this was the same engine.

The doctrine first invoked under this exception is that, where the injury complained of is shown to have been caused by sparks from an engine which is specifically known and identified, the evidence should be confined to that engine. Hereon it appears that on May 2, 1905, defendant's attorney wrote a letter to plaintiff's attorney, offering to point out to him each engine which passed the place of the beginning of the fire causing the loss on the day it occurred, and to give him an opportunity to examine it, and that a history of the character of the netting and spark arresters in each would be given him if he so wished. In reply thereto by letter the day following the plaintiff's attorney said: "I will communicate to those interested what you say about inspecting engines. Do you mind giving me number and name of engine which passed north about 12:30 (noon) on day of fire?" The record does not show any reply to this letter. Indeed, in discussing before the court below the matter of admitting the two letters in evidence, it was stated by plaintiff's counsel without contradiction that no reply was made. Nor does it appear that any engines were thus pointed out or inspection had. The evidence does not show the number of trains that passed over the road on the day in question, but it appears that there were four or more within a few hours previous to the time when the fire was discovered. According to some of the evidence a train passed about 12 o'clock, noon, and smoke was seen coming from the locality of the setting out of the fire within less than 15 minutes thereafter. Other evidence tended to show that the fire was discovered shortly after the passing of the freight train going north, which left Bethel at 12:30 o'clock. It is not claimed that any of the engines hauling the four or more trains passing within the few hours previous to the discovery of the fire were specifically known and identified; and the effect of an offer to point out the offending engine we need not consider, for no such offer was made. As before seen, it was to point out "each engine that passed there on that day."

Whatever may be said regarding the soundness of the modified rule contended for, when applicable, surely the record before us does not present a case that comes within it. In Pennsylvania it is held that where the injury complained of is shown to have been caused, or in the nature of the case could only have been caused, by sparks from an engine which is known and identified, the evidence should be confined to the condition of that engine, its management, and its practical operation. Yet in Henderson v. Philadelphia, etc., Ry. Co., 144 Pa. 401, 22 Atl. 851, 16 L. R. A. 299, 27 Am. St. Rep. 652, where the evidence showed that four engines drawing trains had passed within an hour before the discovery of the fire, three of them being unknown and unidentified, and the one to which the fire was attributable not definitely ascertained, it was held competent for the plaintiff to prove that the defendant's locomotives generally, or many of them, at or about the time of the occurrence, threw sparks of unusual size and kindled numerous fires upon that part of the road, to sustain or strengthen the inference that the fire originated from the cause alleged. In Hoskinson v. Central Vt Ry. Co., 66 Vt. 618, 30 Atl. 24, it was impossible for the plaintiff to furnish any proof as to the particular engine which he claimed had caused the loss. It was held that under those circumstances the plaintiff was properly allowed to introduce evidence as to any of defendant's engines which had been in use upon the line within a reasonable time before the alleged fire. In Grand Trunk Ry. Co. v. Richardson, 91 U. S. 454, 23 L. Ed. 357, defendant's railroad bridge first took fire, from which the...