Smith v. Chicago, M. & St. P. Ry. Co.

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

55 N.W. 717

4 S.D. 71

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

Supreme Court of South Dakota

June 26, 1893

Syllabus by the Court.

1. A special finding of a jury that the negligence of the defendant which caused the damage to the plaintiff was the condition of its locomotive engine is within the allegations of the complaint, alleging that "the defendant carelessly and negligently ran an engine along its line of railway, which engine then and there was so negligently and insufficiently constructed and equipped, and then and there was so negligently and carelessly operated by the defendant that it emitted and threw out large sparks of fire."

2. An allegation in plaintiff's complaint that the defendant's engine "was so negligently, carelessly and insufficiently constructed and equipped" as to emit and throw out large sparks of fire properly included the condition of such engine 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.

3. Evidence tending to prove that a locomotive engine which caused a fire destroying plaintiff's property also set two other fires about the same time is not necessarily overcome by evidence that the engine was properly equipped with the best known appliances for arresting sparks, was in good condition, and managed by a competent and trustworthy engineer, as a matter of law. Such evidence tends to raise a conflict in the evidence as to the negligence of the defendant, which must be determined by the jury, and this court cannot say that the jury, from such evidence, were not justified in finding that the engine was not in good condition.

4. Whether or not evidence tending to prove the setting of two other fires about the same time by the engine that caused the destruction of plaintiff's property is admissible as tending to prove negligence on the part of the defendant is a question of law, for the court; and an instruction by the court to the jury that such evidence was admissible for the purpose stated is proper, and the fact that this instruction is repeated in an instruction given upon the request of plaintiff's counsel does not constitute error.

5. The burden of proving contributory negligence on the part of the plaintiff rests upon the defendant, unless the plaintiff, in making out his case, prove, or give evidence tending to prove, that he was guilty of such contributory negligence and when there is no evidence upon the subject it is the duty of the court to assume that the plaintiff was not guilty of such contributory negligence, and so instruct the jury.

Appeal from circuit court, Bon Homme county; E. G. Smith, Judge.

Action by Fen Smith against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

R. B Tripp, (H. H. Field, of counsel,) for appellant. French & Orvis, for respondent.

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 out 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 trustworthy 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. Railway Co., 45 N.W. 204. 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. Railway Co., 52 N.W. 420, 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...