Smith v. Chicago

• Decision Date: 26 June 1893
• Citation: 55 N.W. 717,4 S.D. 71
• Court: South Dakota Supreme Court
• Parties: SMITH, Plaintiff and respondent, v. CHICAGO, M. & ST. P. RY. CO., Defendant and appellant.

4 S.D. 71

55 N.W. 717

M. & St. P. Ry. Co.,(1893)

SMITH, Plaintiff and respondent, v. CHICAGO, M. & ST. P. RY. CO.,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Bon Homme County, SD

Hon. E. G. Smith, Judge

Affirmed

R. B. Tripp, Yankton, SD

H. H. Field, of counsel

Attorneys for appellant.

French & Orvis, Yankton, SD

Attorneys for respondent.

Opinion filed June 26, 1893

CORSON, J.

This was an action to recover damages alleged to have been sustained by the plaintiff through the negligence of the defendant, in permitting sparks to escape from its engine used on the line of its railway, whereby a quantity of hay belonging to the plaintiff was destroyed. Verdict and judgment for plaintiff. Defendant appeals.

1. The first question presented is as to the effect of certain special findings of the jury, made in connection with their general verdict, which are as follows:

“Special: (1) Did the fire that destroyed plaintiff’s hay start from sparks emitted by defendant’s engine? Answer. Yes. (2) If your answer to the last question be ‘Yes’ were the sparks emitted through the negligence of the defendant? A. Yes. (3) Was the plaintiff’s loss due to the negligence of the defendant? A. Yes. (4) If your answer to the last two questions be ‘yes,’ in what did the negligence consist? First. Was it in the construction of the engine? Second. In its condition or equipment? Third. Its operation? A. In its condition.”

The learned counsel for the appellant contends that

“the defendant is charged with being negligent in respect to the construction, equipment and operation of the engine. The jury specially find that the defendant was not negligent in any one of these respects, but that it was negligent in regard to the condition of the engine. … They were directed by the court, upon the enumeration of all of the kinds of negligence alleged, together with another not alleged, to state in what the negligence consisted, and they say it was in one of the particulars of this enumeration only. This necessarily excludes the others, and is a special finding by them that the defendant was not negligent in any of the others enumerated. This being so, on reference to the complaint and findings it will be seen the defendant was acquitted of all negligence charged in the complaint.”

The allegation of the complaint upon the subject of the negligence complained of is “that on said date the defendant carelessly and negligently ran a locomotive engine along said line of railway, which engine was then and there so negligently and insufficiently constructed and equipped, and then and there was so carelessly and negligently operated by the defendant, that it emitted and threw cut large sparks of fire,” etc. The learned court below evidently construed the term “condition,” in the findings, as applied to the engine, as embraced in the allegations of the complaint. While strictly speaking, “equipped” has reference to the appliances to make the engine effective for the purposes for which it is intended, and “condition” has reference to the state these appliances are in for accomplishing the purposes intended, yet in common language this distinction is not usually observed, in speaking of a locomotive engine. It would doubtless be difficult for ordinary minds to comprehend the distinction between an engine not properly equipped for arresting sparks and one not in condition to arrest them. If properly equipped—that is, supplied with whatever may be necessary to efficient action,—it would be, under ordinary circumstances, in condition to arrest sparks. If not in such condition it would not be properly equipped to accomplish the purposes designed. We are of the opinion, therefore, that the court committed no error in holding that the finding substantially corresponded with the complaint. More especially is this so in this case, as the defendant tried the cause in the court below upon the theory that the condition of the engine was in issue, as fully appears from an examination of the testimony on the part of the defendant. Mr. Whitney, the engineer who ran the engine at the time of the fire, after testifying as to the manner of the construction of the engine, and its appliances for arresting sparks, etc., was asked: “You observed the condition of the engine at that time, did you. Yes, sir. What was its condition at that time? It was O. K. What do you mean by that? It was in good condition.” The fireman and other witnesses were asked similar questions by counsel for defendant. We think it is too late, therefore, to make the point that the findings did not substantially conform to the pleadings, and we are of the opinion that by a fair construction of the complaint the allegation that the defendant’s engine “was so negligently, carelessly, and insufficiently constructed and equipped” did necessarily include its condition for arresting sparks, whether its defects in that respect resulted from its original construction, or from defects caused by use, wear or injury to its parts. In either case it would not be properly equipped for the purpose for which it was intended. This finding then established the fact that defendant’s engine was not in proper condition for arresting sparks.

2. It is further contended, however, by counsel for the appellant, that this finding of the jury is not supported by the

evidence, and ought to have been set aside by the trial court, as the evidence on the part of the defendant established the fact that the engine was properly equipped, in good condition at the time of the fire, and managed by a competent and trust-worthy engineer, and therefore completely overcome the presumption of negligence from the fact that defendant’s engine caused the fire, as held by this court in Kelsey v. Chicago & N. W. Ry. Co.,(1890). But in this contention we think the counsel for appellant have not given sufficient consideration to the evidence on the part of the plaintiff in addition to the presumption of negligence caused by the fire. If the plaintiff had given no evidence of negligence, but relied solely on the presumption, the counsel’s contention would have undoubtedly been correct, as this court so held in the case of Cronk v. Chicago, M. & St. P. Ry. Co.,(1892), following the case of Volkman v. Railway Co., 5 Dak. 69, 37 N.W. 731; Pattee v. Railway Co., 5 Dak. 267, 38 N.W. 435; Huber v. Same, 6 Dak. 392, 43 N.W. 819. The evidence on the part of the plaintiff that the same engine set two other fires at about the same time, and within about one-half mile of the first fire, was important, as showing that the engine was not in a proper condition to prevent the emission of sparks. This evidence on the part of the plaintiff was not controverted, but it was sought, not only to rebut the presumption we have alluded to, but the evidence on the part of the plaintiff that the same engine set two other fires about the same time, by proof that the engine was properly equipped, in good condition, and operated by a competent and careful engineer. There was therefore conflicting evidence on the question of negligence, to be determined by a jury as a question of fact, and not one of law for the court. The case of Railroad Co. v. Hotham, 22 Kan. 41, was a very similar case to the one at bar. In that case the plaintiff was not aided by the presumption of negligence on the part of the defendant upon proof that the engine caused the fire, but the burden was upon the plaintiff in that state to prove the negligence of the defendant.

This the plaintiff sought to do by proving that the engine that caused the fire also caused two other fires the same day. The evidence showed, and the jury found, that the engine from which the sparks escaped which caused the fire was a first-class engine, in good order and good condition, and supplied with all the most approved appliances for preventing the escape of sparks of fire. The engineer who had charge of the engine at the time the fire was produced, was also a careful, competent, and trustworthy engineer.” Opinion of the court, (p. 48.) But the jury found, notwithstanding this proof, that the engine was mismanaged, and found for the plaintiff. In delivering the opinion Mr. Justice Valentine says:

“The law does not attempt to define what particular facts or conduct shall constitute negligence, or prove negligence. It, at most, can only say that negligence is the absence of care, and leaves the question for the jury to determine whether, under all the circumstances, due care has been exercised or not. Of course, it is the province of the court to determine whether the evidence offered or introduced tends to prove or disprove negligence. And if no evidence is offered or introduced, tending to prove negligence, the court may itself decide that no negligence is proved, and direct the jury to find accordingly. And. where evidence is introduced, proving negligence beyond all controversy, and no countervailing evidence is introduced, the court may generally say that the negligence is proved. … And when all the evidence offered is introduced, then, unless there is no evidence introduced to prove negligence, or unless the evidence introduced is all one way, and proves negligence beyond all controversy, the question whether negligence is proved or not is a question for the jury, and not a question of law, for the court. In all cases where the facts constituting or tending to prove or disprove the negligence are disputed, the question whether such supposed negligence has any existence or not is a question of fact, for the jury. And even where there is no dispute about the facts, in their details, still, if they are stated or proved in such limitless, cumbrous, or diffusive detail that different minds, of reasonable capacity, might honestly differ with respect to whether they in fact constitute or prove negligence, or not, the question as to whether they do in fact constitute...