St. Paul Fire & Marine Ins. Co. v. Baltimore & O.R. Co.

• Decision Date: 08 May 1935
• Docket Number: 25083.
• Parties: ST. PAUL FIRE & MARINE INS. CO. et al. v. BALTIMORE & O. R. CO.
• Court: Ohio Supreme Court

195 N.E. 861

129 Ohio St. 401

ST. PAUL FIRE & MARINE INS. CO. et al. v. BALTIMORE & O. R. CO.

No. 25083.

Supreme Court of Ohio.

May 8, 1935

Error to Court of Appeals, Stark County.

Action by the St. Paul Fire & Marine Insurance Company and others against the Baltimore & Ohio Railroad Company. A judgment for defendant was affirmed by the Court of Appeals, and the plaintiff brings error.-[Editorial Statement.]

Affirmed.

On the afternoon of Sunday, May 4, 1930, the buildings, stock of lumber, building materials, and other equipment and personal property of the City Lumber Company, an Ohio corporation located at Wuske Place Southeast, in the city of Canton, were completely destroyed by fire.

Plaintiffs in error, four fire insurance companies, had insured the City Lumber Company against loss of this kind, and made settlement in the sum of $39,035.24, each contributing $9,758.81 thereupon taking from the lumber company an assignment of any claims it might have against others for causing such loss and thereby becoming subrogated to any rights of the lumber company in this respect.

Running along the east side of the lumber company's property are the tracks of the Baltimore & Ohio Railroad Company, the defendant in error, over which it operates steam locomotives and cars.

Plaintiffs in error filed their joint petition against defendant in error in the court of common pleas of Stark county to recover the said sum of $39,035.24, with interest, alleging that the fire in issue was directly attributable to the negligence and carelessness of the defendant in error railroad company in operating one of its engines in close proximity to the lumber company and in permitting sparks and coals of fire from such engine to ignite dry grass and weeds negligently allowed to remain along its right of way; the fire so caused being communicated to the lumber company's premises.

Defendant in error filed an answer containing certain formal admissions, a general denial, and an express denial that it was negligent in operating any of its locomotives in the vicinity of the lumber company, or that loss was caused by fires originating upon lands belonging to it or under its control.

After a protracted trial the jury rendered a unanimous verdict in favor of defendant in error, upon which judgment was entered. Such judgment was affirmed in the Court of Appeals, and the case is now here by reason of the allowance of the motion to certify the record.

Other material facts are contained in the opinion.

Syllabus by the Court .

1. Evidence of experiments performed out of court, tending to prove or disprove a contention in issue, is admissible if there is a substantial similarity between conditions existing when the experiments are made and those existing at the time of the occurrence in dispute; dissimilarities, when not so marked as to confuse and mislead the jury, go to the weight rather than the admissibility of the evidence.

2. The admission or rejection of evidence as to such experiments is a matter peculiarly within the discretion of the trial judge and when such discretion has not been palpably abused reviewing courts will not interfere.

3. In an action against a railroad company for destruction of property by fire alleged to have originated from sparks and coals of fire negligently allowed to escape from one of its locomotives, where all the evidence as to the cause of such fire is circumstantial, it is not reversible error to permit the railroad company to introduce testimony of the habitual use of such property by persons who have been observed smoking thereon during such use.

4. An instruction to a jury is properly refused when predicated on an issue which is not raised by the pleadings and is foreign to the theory upon which the case was tried.

Amerman & Mills, of Canton, for plaintiffs in error.

Baker, Hostettler, Sidlo & Patterson, of Cleveland, and Lynch, Day, Pontius & Lynch and John G. Ketterer, all of Canton, for defendant in error.

ZIMMERMAN, Judge.

As often happens in cases of this kind, the evidence as to the origin and cause of the fire was circumstantial. No witness, save one, testified that any fire was to be seen on the outside prior to the time that smoke was observed coming from the premises of the lumber company. The exception was William Forte, called by plaintiffs in error, who stated that between 1 and 2 o'clock on the day the fire occurred he was driving his automobile north on Allen Street Southeast, in the city of Canton; that he stopped at a point about twenty feet from where the tracks of the defendant in error intersect Allen street, for a train to pass; and that he looked back to the south, some two blocks in the direction of the lumber company, and saw a grass fire about two feet high on the right of way of defendant in error.

Considering other evidence in the case, the fact that Forte's employer, with whom he lived, had an action pending against defendant in error for destruction of his barn from the same fire that destroyed the property of the lumber company, and that Forte had served a term in the Mansfield reformatory for burglary, it may well have been that his testimony carried little or no weight with the jury.

There was some testimony of an indefinite character that a ‘ shifter’ or switch engine of defendant in error had passed the lumber company's premises on the day of the fire and prior to its discovery. However, definite testimony was produced by defendant in error that no switch engine had been within a half mile of the lumber company on such date, prior to the fire. It is admitted that defendant in error's locomotive No. 1332, with a tender and three passenger cars, passed the premises of the lumber company at approximately 12:30 p. m. on May 4, 1930.

Three general assignments of error are urged by counsel for plaintiffs in error. First, the improper admission of evidence. Second, the refusal of the trial court to give special charge No. 5 requested by plaintiffs in error. Third, error in the general charge.

Defendant in error called as its witness one A. L. W. Wallace, mechanical engineer, of Washington, D. C., who qualified as an expert in ‘ railway mechanical engineering relating to locomotives and the general car equipment for railroads.’ Over objections and exceptions he was allowed to testify as to two different sets of experiments he had made.

On December 16, 1931, he came to Canton. There was placed at his disposal said locomotive No. 1332 with a tender and three passenger cars, in charge of the same crew that had operated such locomotive and its train of cars on the day the fire in question occurred. Mr. Wallace staked off a considerable area parallel with the center line of defendant in error's right of way and opposite the premises of the City Lumber Company; starting on a line fifteen feet from the center of the track he placed alternate and parallel rows of pans containing paraffin, and boxes covered with cotton fleece gauze with the fleecy side up. The train was run past this area under varying conditions-three times coasting and twice ‘ pulling.’ There was a fluctuating wind, ranging from practically no wind at all to wind of a velocity of about three miles per hour. After each test an examination was made of the pans of paraffin and of the boxes of cotton fleece gauze. From the coasting tests no material of any kind was found in the pans or on the gauze. From the ‘ pulling’ tests the pans were found to contain a ‘ fine dusty flaky material, but no cinders.’

There is testimony in the record that locomotive No. 1332 had been inspected on May 4, 1930, and on December 16, 1931, and was found to be in good condition on both occasions, particularly as concerns the wire mesh netting composing a part of the spark arresting apparatus in the front end.

Preceding his description of the second set of experiments, Mr. Wallace testified that in trials extending over a number of years he had never been able to catch from a locomotive a cinder having a temperature of more than 1200 degrees Fahrenheit; that the fire box temperature in locomotives of the type of No. 1332 was from 1700 to 1900 degrees under ordinary operating conditions; and that the loss of heat between the fire box in the rear of a locomotive and the smoke box in front was about 70 per cent.

The second set of experiments was made in a laboratory at Johns Hopkins University. Cinders were taken from the front part of locomotive No. 1332 of a size too large to pass through the wire mesh of the spark arrester, which were placed in a crucible, heated to temperatures of 1200, 1400, and 1600 degrees in an electric furnace, and dropped onto dry grass under breezes from an electric fan controlled by an anemometer, such breezes being regulated to velocities of from four to seven miles per hour. The only occasion upon which combustion occurred was when bunched cinders were dropped from the crucible onto the grass at a temperature of 1600 degrees.

Obviously, the purpose of this second set of experiments was to demonstrate that even if cinders has escaped from locomotive No. 1332 onto the grass growing on defendant's right of way near the City Lumber Company, the chances of resulting fire were remote.

Was the admission of the testimony as to these experiments prejudicial error?

Admissibility of evidence relating to experiments made out of court is a matter with which the courts have often been confronted. Certain general, and in the main, uniform rules have resulted. Such evidence is usually held competent if there is a substantial similarity between the conditions existing at the time of the occurrence complained of and when the experiments...