Smith v. Ogden & N.W.R. Co.

• Decision Date: 09 December 1907
• Docket Number: 1833
• Citation: 33 Utah 129,93 P. 185
• Parties: SMITH v. OGDEN & N.W. R. CO
• Court: Utah Supreme Court

93 P. 185

33 Utah 129

SMITH v. OGDEN & N.W. R. CO

No. 1833

Supreme Court of Utah

December 9, 1907

APPEAL from District Court, Second District; J. A. Howell, Judge.

Action by A. R. C. Smith against the Ogden & Northwestern Railroad Company. From a judgment for defendant, plaintiff appeals.

REVERSED, AND REMANDED FOR NEW TRIAL.

George Halverson and T. N. Kimball for appellant.

APPELLANT'S POINTS.

It is the duty of a railroad company to keep its right of way free from dry grass, weeds and other combustible materials, in order that fire may not be set out of its right of way; and if it negligently permits dry grass, weeds, leaves or other combustible material to accumulate and remain in its right of way, and the same takes fire from one of its passing engines and is communicated to an adjoining farm, where it destroys the property of the owner without negligence on his part such railroad company is liable. (Railway v. Ludlem [Kan.], 66 P. 1045; Eddy v. Lafayette, 163 U.S. 456, 16 S.Ct. 1082, 48 L.Ed. 225; Watts v. Railroad, [Nev.], 44 P. 423; Perry v. Railroad, 50 P. 578; Flynn v. Railroad, 40 Cal. 14; Railroad v. Ward, 48 Ind. 776; Toxler v. Railroad, 74 N.C. 377, 41 Cent. Dig., secs. 1673-1676; Watt v. Railroad, 44 P. 424; Railroad v. Wise, 74 N.E. 1107; Sampson v. Hughes, 81 P. 292.)

C. C. Richards and Van Cott, Allison & Riter for respondent.

RESPONDENT'S POINTS.

We do not deny the rule that negligence of the plaintiff as a contributing cause of his own injury is a defense which should be pleaded, but this is not so as to the negligence of the plaintiff of either commission or omission tending to enhance his damage and not a contributing cause of his injury. The latter may always be shown under the general denial. (1 Thompson on Neg., sec. 201; 1 Sutherland on Damages, 191; Osborn v. Lovell, 36 Mich. 250; Owens v. Railroad Co., 1 L. R. A. 75 and note; Stebbins v. Railroad, 41 Am. 855; Lawrence v. Porter, [Mich.], 26 L. R. A. 167; Toledo, etc., Co. v. Pindar, 53 Ill. 447; Dobbins v. Duquid, 65 Ill. 464; Blizzard v. Applegate, 61 Ind. 368; Memphis, etc., Co. v. Hembree [Ala.], 4 So. 392.)

A railway company having the legal right to propel its cars by steam along a public highway is not liable for fires communicated by its engines, unless it has been negligent in their construction or management. (1 Thompson on Neg., 153 and notes; Tilley v. Railroad, 39 Kan. 535, 6 S.W. 9; Vaughan v. Railroad, 5 Hurl. & N. 678; Burrows v. Railroad, 15 Conn, 124, 38 Am. Dec. 64.

STRAUP, J. McCARTY, C. J., and FRICK, J., concur.

OPINION

STRAUP, J.

This action was brought to recover damages for the destruction of property by fire alleged to have been caused by the negligence of the defendant in the operation and management of its engine. The particular negligence charged against the defendant was in permitting dry grasses and weeds to be and remain upon its right of way, in failing to equip its engine with a proper spark arrester, and in the manner of handling and operating the engine. The answer was a general denial. A trial before the court and a jury resulted in a verdict for the defendant. Plaintiff appeals.

The defendant's track was maintained upon a public street or highway. Plaintiff's land was eighty or one hundred rods north of the track. A Mr. Stephens and a Mr. Ellis owned two parcels of land lying between plaintiff's land and the track. The highway and defendants right of way were covered with dry June grass, which, at the time of the fire, about the middle of July, readily ignited. There were also June and other dry grasses on lands adjoining the track and lying between the track and plaintiff's land. On the day in question, as defendant's engine was propelled and operated over its road, a number of fires were started from sparks and coals which were emitted from the engine, one of which fires started at the Stephens land, and others to the east and west of that place. The fire which started at the Stephens land spread from there to plaintiff's land where it destroyed his hay in the stack, his pasturage, and his fences. None of the other fires reached his land. That all the fires were caused by sparks and coals emitted from the defendant's engine, there is no substantial conflict in the evidence. That some of the fires which started to the west and the east of the Stephens land originated on the defendant's right of way is also beyond dispute. Whether the particular fire which spread to plaintiff's land started from sparks thrown on the defendant's right of way, or from sparks thrown on the Stephens land adjoining the street and right of way, the evidence is conflicting; but there is sufficient evidence in the record to justify a finding by the jury that it started on defendant's right of way. The court charged the jury: "You are instructed that the defendant's railroad, where it passes along the road in the vicinity of the premises sued for by the plaintiff as having been damaged, was in the public highway, over which defendant had no control further than to maintain and operate its railroad, and that if there was dry grass or other combustible material growing in said highway and along the said defendant's said railroad track, or in the fields adjoining such highway, the defendant was not responsible therefor, and cannot be held liable for any damage sustained by the plaintiff, if you find that the plaintiff was damaged, by the setting on fire of such dry grass or other combustible material growing in said public highway, or in the fields adjoining the same, by the sparks from its said engine, provided the said engine was supplied with the most approved apparatus for the prevention of the emission of sparks and coals of fire, and that the engine was in good repair at that time, and operated by a competent engineer with reasonable care and skill at the time the fire was started by said engine, if you find that the engine started the fire."

Plaintiff's exception to this charge must be sustained. From this, as well as other portions of the charge, it will be seen that the court restricted the jury's finding on the question of the defendant's negligence to the allegations with respect to equipment and management of the engine, and entirely took from their consideration the alleged acts of negligence with respect to permitting dry grass and combustible matter to accumulate and remain on and along the defendant's railroad track. That it is, the duty of a railroad company to keep its right of way free from dry grasses and other combustible materials in order that fire may not be set out on its right of way, and if it negligently permits dry grasses and other combustible material to accumulate and remain on its right of way, and the same takes fire from one of its passing engines and is communicated to an adjoining farm, where it destroys the property of the owner without negligence on his part, the railroad company is liable, is not questioned by the respondent. As is said by the authorities, the removal of such combustible substances is quite as much a means of preventing the communication of fire from locomotives as is the use of inventions for preventing the escape of fire from the locomotives themselves. The charge evidently was given on the theory that, inasmuch as the defendant maintained its track upon a public highway over which it had no control, no duty was imposed upon it to keep its right of way clear of such combustible substances. But the duty imposed upon it in such case is the same as though it owned the right of way, at least to such portions of the highway occupied and used by it in the operation of its railroad and to such portions as may be properly regarded its right of way. (Lake Erie & W. R. Co. v. Middlecoff, 150 Ill. 27, 37 N.E. 660.) This principle of law is not, in this court, seriously controverted by the respondent. It is, however, contended by it that the error was harmless, because, as it claims, the evidence shows that the particular fire which spread to plaintiff's land did not start on the right of way, but started from sparks thrown on the Stephens land, and hence its alleged negligence in permitting dry grasses and other combustible material to be and remain on its right of way was not a contributing cause of the injury. Upon this point we have carefully examined the transcript, and while it may be said the evidence pertaining to it is not very direct, still we are of the opinion that there is sufficient evidence to justify a finding that this particular fire originated on the defendant's right of way. The charge of the court was therefore erroneous and prejudicial.

A further complaint is made by the plaintiff because of the court's charging the jury on the question of contributory negligence. This complaint is based upon the ground that contributory negligence was not pleaded, and on the further ground that there was no evidence to justify a finding of such negligence. The plaintiff, however, is not in a position to make such claim, for the reason that he himself requested the court to charge upon the subject. While the plaintiff may still be heard to complain that the court erroneously stated the law, if it was not stated as requested by him nevertheless he cannot be heard to complain upon the ground that the court charged upon a subject which was neither presented by the pleadings nor the evidence when he himself requested the court to do so. As the judgment must be reversed, and a new trial granted because of the assigned error already reviewed, and as the questions of contributory negligence attempted to be presented are likely to arise on a new trial, we have concluded to consider them. The rule obtains in this jurisdiction that the plaintiff is not required to...