Snyder v. Pittsburgh, C. & St. L. Ry. Co.
| Decision Date | 07 July 1877 |
| Citation | 11 W.Va. 14 |
| Parties | SNYDER, et al. v. P., C. & ST. L. RAILWAY CO. |
| Court | West Virginia Supreme Court |
(ABSENT, MOORE, JUDGE.)
1. In an action of trespass on the case brought by the plaintiffs against the defendant the count of the declaration upon which the case was tried alleges, " that on the 29th of October, 1874, and before and since that time, they were seized and possessed of a certain tract of land in said county of Brooke, in the state of West Virginia, situate on the waters of Harmon's creek, containing about two hundred and forty acres, being the same farm owned by David Snyder, deceased late of said county, and known as the Snyder Mill property, except that part of said tract of land which is now and has been for a long time owned by the defendant consisting of a strip of said land one hundred feet in width running through said farm, and which is used by said defendant for its railroad, except the ground on which the water grist mill stood, the said land of the plaintiffs being partly cleared and in a high state of cultivation, and the residue thereof being woodland, with valuable timber growing and being thereon, next prior to the grievances hereinafter named. And the said defendant for the last five years and more was and still is possessed and in the occupation of the said strip of land of one hundred feet in width, running through said lands of plaintiffs as aforesaid, on which said land of defendant it has constructed a line of railroad which it now operates and has operated for a long time past to-wit: for more than five years last past, by continuously running trains of cars over said line of road, drawn by locomotives, propelled by fire and steam, and the said defendant, by reason of the possession of its said parcel of land, and its occupation and use for railroad purposes as aforesaid, of right ought to have prevented the dried grass dried leaves and weeds, and other combustible matter from being and accumulating on its said line of road and its said land, to prevent the ignition of said combustible matter by fire from the locomotives of said defendant, used on its said railroad, and the spread of fire by the ignition aforesaid to and over the said lands of said plaintiffs, and doing damages thereto. Yet the said defendant, well knowing the premises, but contriving and wrongfully and unjustly intending to injure and aggrieve the said plaintiffs in that behalf whilst the said plaintiffs and defendant were so respectively possessed of their said respective tracts of lands as aforesaid, to-wit: on the 29th day of October, 1874, wrongfully and unjustly suffered and permitted dried grass, dried weeds and dried leaves, and other combustible matter to be and accumulate on its said land and railroad aforesaid, and thereby on the day and year last aforesaid fire emitted and dropped from a locomotive of said defendant on said land and railroad of defendant, ignited the said dried grass, dried weeds, dried leaves and other combustible matter aforesaid, which caused a conflagration thereof, which said conflagration spread rapidly to and over the said adjoining lands of said plaintiffs to such an extent that said conflagration destroyed about two and half miles of rail and board fence, worth $1,500.00, and growing timber and other forest timber, and injured the same to the extent and value of $1,200.00, and burned and injured the pasture and growing wheat on said tract, and rendered the same useless to the amount of $300.00, & c. The damages in this count are laid at $7,000.00. Held:
That said count shows legal cause of action, and is good upon general demurrer, and that it was not error in the circuit court to overrule a demurrer thereto.
2. It was not necessary for the plaintiffs to aver in the declaration that they were not guilty of negligence which contributed to the burning of their property, or in other words that they were not guilty of contributory negligence.
3. Negligence in the plaintiffs contributing to the loss is a defense at common law, the benefit of which the defendant may avail himself in a proper case.
4. The plea in the cause was not guilty, on which issue was joined, and at the trial before the jury after the evidence was given to the jury by both parties, the defendant's counsel asked the court to instruct the jury as follows, viz:
" 1st Proposition--For a railroad company to permit grass and weeds to grow and remain upon its right of way, out side of its water table, and more than four feet from its track, through a sparsely settled region of country and not near to valuable buildings, when such grass and weeds are in such quantity and so small in growth that they cannot be mown, is not negligence, and that negligence is the want of ordinary care in this case, by which is meant such care as men of ordinary care and prudence use under like circumstances.
2d Proposition--Unless the plaintiffs have proved by a preponderance of evidence that the defendant failed to keep its ground at the place where this fire started, or from where it spread upon the plaintiff's land, as free from grass or weeds or leaves as other railroads managed with care and prudence are kept, then the plaintiffs cannot recover in this action, and your verdict must be for the defendant.
3d Proposition--The burden of proof is on the plaintiff, and before he can recover in this action, he must satisfy you by a prepondenance of evidence that the defendant was guilty of negligence in this matter at issue in this case, which is: Did the defendant, on the 29th day of last October, keep its railroad ground, at the place where the fire was on said railroad ground, as free from grass, weeds and leaves, or either of them, as men of ordinary care and prudence do under the same or similar circumstances?
4th Proposition--If the plaintiffs knew the place where this fire started, and from whence it spread to their land was a place where fire had often caught from sparks emitted from the defendant's locomotives in their ordinary use is passing, and permitted grass and weeds to grow and remain upon their lands adjoining said place to the same extent the defendant allowed grass and weeds to grow and remain upon its adjoining lands, the plaintiffs are guilty of contributory negligence, and cannot recover in this action.
5th Proposition--The question whether the locomotive was in good order or well managed is not in this case, and you will, therefore, wholly disregard all that has been heard or said upon that subject.
But the court refused to give the first, second and fourth instructions so asked by the defendant, and the latter portion of the third. Held:
For reasons stated in the opinion of the court filed in the cause, that the circuit court did not err in refusing to give to the jury the first, second and fourth instructions so asked by the defendant's counsel, and the latter portion or clause of the third.
5. The true question involved in the issue touching the matter of negligence on the part of the defendant to be determined by the jury was, from the evidence and all the circumstances and surroundings including the dryness of the time, did the defendant permit such an accumulation of grass, weeds or leaves of a combustible nature within its right of way at the point where the said fire occurred, exposed to ignition by its engines, as would not be permitted or done by a cautious and prudent man upon his own premises if exposed to the same hazard from fire as the accumulation of dry grass, weeds or leaves upon the said right of way of the defendant.
6. Persons occupying farms along railroads are entitled to cultivate and use them in the manner customary among farmers, and may recover for damages by fire resulting from the negligence of a railway company although they have not plowed the dry grown grass or taken other like unusual means to guard against such negligence.
7. Negligence of the plaintiffs in such cases which precludes a recovery, is where in the presence of a seen danger (as where the fire has been set) he omits to do what prudence requires to be done under the circumstances for the protection of his property, or does some act inconsistent with its preservation. Where the danger is not seen, but anticipated merely, or dependant on future events (such as the future continuance of defendants' negligence) plaintiff is not bound to guard against it by refraining from his usual course (being otherwise a prudent one) in the management of his property and business.
8. In the exercise of his lawful rights, every person has a right to presume that every other will perform his duty and obey the law, and it is not negligence for him to assume that he is not exposed to a danger which can only come to him through a disregard of law on the part of some other person.
9. A person owning land contiguous to a railroad, is not obliged to keep the leaves falling from his trees, from being carried by the wind to such railroad; nor to keep his lands clear of leaves and dry grass or weeds, or other combustible matter; nor on failure to perform such acts, does he become contributory to the production of a fire originating in the carelessness, on its own land, of a railroad company.
10. If the place where the fire started, and from whence it spread, was a place where fire had often caught from sparks from defendant's locomotives in their ordinary use in running, it tends to show a negligent habit on the part of the defendant in suffering combustible material to accumulate on its land at that place instead of amounting to a reason why the plaintiffs should not recover, although the plaintiffs knew of such fires.
11. It is unnecessary that there should be a separate bill of exceptions taken and signed to each ruling or ...
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