Spokane International Ry. Co. v. United States

• Decision Date: 31 August 1934
• Docket Number: No. 6959.,6959.
• Citation: 72 F.2d 440
• Parties: SPOKANE INTERNATIONAL RY. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

72 F.2d 440 (1934)

SPOKANE INTERNATIONAL RY. CO. v. UNITED STATES.

No. 6959.

Circuit Court of Appeals, Ninth Circuit.

August 31, 1934.

Alex M. Winston, of Spokane, Wash., and Ezra R. Whitla, of Coeur d'Alene, Idaho, for appellant.

H. E. Ray, U. S. Atty., and W. H. Langroise, Sam S. Griffin, and Ralph R. Breshears, Asst. U. S. Attys., all of Boise, Idaho.

Before WILBUR, SAWTELLE, and MACK, Circuit Judges.

MACK, Circuit Judge.

This is an appeal by defendant from a judgment for plaintiff for $21,529.65, pursuant to verdict, in an action for damage to the Pend Oreille National Forest by a fire alleged to have been caused by defendant's negligence.

The negligence charged consisted in failing to keep the right of way clear of inflammable material as required by an Idaho statute of 1925 (Laws 1925, c. 150, § 14 now in Idaho Code Ann. (1932) § 37-117), in operating coal burning engines without adequate spark arresters, and in permitting the spread of the fire to plaintiff's lands. Plaintiff's evidence was offered under its contention that liability would be established by proof either that the fire started on defendant's right of way in inflammable material which, contrary to the statute, it had allowed to accumulate there, regardless of whether or not defendant actually caused the fire, or by proof that, due to improper spark arresters or negligent operation, it was caused by a spark or cinder from defendant's locomotive, regardless of whether such spark or cinder first ignited material on defendant's property or beyond its right of way.

Defendant moved for nonsuit at the close of the evidence on the ground of its insufficiency to show that the fire had been started by defendant or had originated on its right of way or to sustain any of the allegations of negligence. Assigning the denial of this motion as error, appellant contends that the complaint states two separate causes of action, one based on negligence in the maintenance of the right of way, the other on negligence in the operation of the trains, and that the judgment must be reversed if the evidence on either cause of action is insufficient to have based a verdict thereon. This contention, however, cannot be sustained because defendant in its motion for a nonsuit treated the complaint — and properly so — as stating a single cause of action based on several distinct grounds of negligence; it did not ask for a nonsuit on each alleged cause of action but on the entire complaint. Cf. Patton v. Wells, 121 F. 337 (C. C. A. 8, 1903). The denial of the motion as made was not erroneous if there was any substantial evidence in support of any one of the charges of negligence.

The evidence tending to prove that the fire was caused by the operation of defendant's railroad consisted of the testimony of several eyewitnesses that, a few minutes after a freight train had passed, they had seen the fire burning on a hillside just above and north of the railway tracks. One of the witnesses testified that he saw the fire about a minute and a half after the train had passed; others that they saw the start of two or three fires which later merged into one. The tracks at this place ran east and west, up a sharp grade near Bloom's Hill, between Bonners Ferry and Eileen; the train, proceeding in an easterly direction from Bonners Ferry, was being pulled by one engine and pushed by another. The wind was blowing briskly from the southwest, and the fire, which is called the Moyie fire, beat rapidly up the hill to the northeast toward plaintiff's lands. There was no affirmative evidence that sparks had been scattered by these engines or indeed by other engines of defendant. Moreover, there was evidence of other fires in the general vicinity at that time, although none were placed close enough to the supposed origin of the Moyie fire to be a likely cause. There was, too, evidence that people sometimes camped in the vicinity but none that campers had been there on the day of this fire.

The evidence from which the jury might infer that defendant's engine caused the fire is considerably stronger than that in General Insurance Co. of America v. Northern Pacific Ry. Co., 280 U. S. 72, 50 S. Ct. 44, 74 L. Ed. 172 (1929). On the record in that case, the Supreme Court, differing on this point from the majority of this court 28 F.(2d) 574, 576, held that the passage of a train with two coal burning engines shortly before a fire was seen burning close to the railway tracks was not sufficient evidence of causation to take the case to the jury. There the fire started in a warehouse fifty feet from the tracks and was not observed by any of the witnesses until about fifteen or twenty minutes after the train had passed. Although there was a steep grade some distance before the warehouse, coming up which other trains of the defendant had been seen to emit sparks at other times, the right of way past the warehouse was level and there was no evidence that this or any train on that level stretch had emitted sparks. In the instant case, however, the fires were seen almost immediately after the train had passed, burning in several places on the hill in the direction from the track in which the wind was blowing. This evidence, taken in connection with the other circumstances disclosed, was sufficient in our judgment to permit the jury to conclude that the fire was set by a spark or cinder from the passing train.

But evidence of causation alone does not suffice; negligence is the basis of the action. Sparks or live cinders are not shown to have been emitted by these or other of defendant's engines at this or at other times; on the contrary, defendant's engineer on this train testified that when the train went through the tunnel not far from where the fire is alleged to have started, he looked back and saw that no sparks were being emitted. The only evidence tending to minimize defendant's proof that efficient spark arresters were used, which on the very day when the fire started had been examined and found to be in good...