Sycamore Pres. Works v. Chicago N.W. Ry. Co.

• Decision Date: 07 April 1937
• Docket Number: No. 23718.,23718.
• Citation: 366 Ill. 11,7 N.E.2d 740
• Parties: SYCAMORE PRESERVE WORKS v. CHICAGO n. w. ry. co./
• Court: Illinois Supreme Court

366 Ill. 11

7 N.E.2d 740

SYCAMORE PRESERVE WORKS

v.CHICAGO n. w. ry. co./

No. 23718.

Supreme Court of Illinois.

Feb. 12, 1937.

Rehearing Denied April 7, 1937.

Suit by the Sycamore Preserve Works against the Chicago & Northwestern Railway Company. To review a judgment of the Appellate Court for the Second District [284 Ill.App. 445, 1 N.E.(2d) 522] reversing a judgment for plaintiff, plaintiff appeals and the cause was brought to the Supreme Court on a certificate of importance, and the defendant assigned cross-errors.

Reversed and remanded with directions.

FARTHING, J., dissenting.Appeal from Appellate Court, Second District, on appeal from Circuit Court, De Kalb County; William J. Fulton, Judge.

Zane, Morse, Zimmerman & Norman, Sims & Stransky, and Latham Castle, all of Chicago (Edward A. Zimmerman, William R. Engelhardt, Franklin J. Stransky, and Henry Glenn Ross, all of Chicago, of counsel), for appellant.

Lowell B. Smith, of Sycamore, and Nelson J. Wilcox, and Nelson Trottman, both of Chicago, for appellee.

STONE, Justice.

This cause is here on certificate of importance from the Appellate Court for the Second District to review a judgment of that court reversing, without remanding, a judgment of the circuit court of DeKalb county. Fire, originating on or near the right of way of appellee, destroyed appellant's warehouse, canning machinery, and a large amount of canned corn. Appellant brought this suit to recover. On a verdict by a jury judgment was entered against appellee for $72,926.

The declaration consists of five counts. The first four charge negligence arising out of the violation of a statute commonly known as the ‘Fencing Act,’ requiring appellee to keep its right of way clear of dead grass, dry weeds, and other dangerous combustible material. The fifth count, in addition to such charge of failure to comply with the statute, charges that the fire was negligently started by appellee's servants who were refilling and lighting a switch lamp at or about the point of the origin of the fire. Appellee's motion for a directed verdict was refused, as was its motion to dismiss the first four counts of the complaint on the ground that they did not state a cause of action. The Appellate Court held that the first four counts did not state a cause of action for the reason that they did not charge appellee with starting the fire. It also held that the fifth count could not be sustained because the evidence did not support the charge that the fire was started by servants of appellee.

The primary question submitted on the certificate of the Appellate Court is whether liability for damages may be predicated alone on a violation of the statute requiring that the right of way of railroad companies be kept clear of all dead grass, weeds, and other dangerous combustible material. There are in the case, however, the questions whether the proof was sufficient to support the charge of the fifth count, and certain cross-errors assigned by the appellee concerning rulings of the court on the trial of the case.

The physical facts are not in dispute. Appellant's cannery and warehouse were situated adjacent to appellee's right of way on the east side thereof at Sycamore, Ill. About 250 feet south of appellant's warehouse a switch stand connected a switch track, known as the Borden switch, with the main track. This switch stand was surmounted by the usual switch lamp. The fire originated at or near this switch stand and owing to a high wind from the south spread north and east along the right of way and the land adjacent thereto, setting fire to appellant's warehouse. The evidence also is that two of appellee's section men, on that day and shortly before the starting of the fire, had taken the lamp from the stand, cleaned, refilled, lighted and replaced it, and the charge of the fifth count of the complaint is that in so doing they negligently set fire to the dead grass and weeds on the right of way of the appellee. The Appellate Court found that the fire started on the right of way of the appellee. While the evidence is conflicting as to the exact time at which appellee's employees refilled and relighted the switch lamp, the Appellate Court found it was but a short time before the fire was discovered. The evidence also is that the fire was discovered by the same section men, who attempted to put it out but were unable to do so.

We will consider first the sufficiency of the first four counts of the complaint. Appellant argues that violation of sections 1 and 1 1/2 of the Railroad Warehouse Act (Smith-Hurd Ill.Stats. c. 114, §§ 53, 54; Ill.Rev.Stat.1935, chap. 114, pars. 78 and 79), by allowing weeds and other combustible materials to accumulate along its right of way, rendered appellee liable in damages for the destruction of appellant's property regardless of where, or by whom, the fire originated. They say that the statute was intended to prevent the spread of fire by requiring that the right of way of a railroad be kept free from combustible materials, and that it being admitted in this case that dry weeds and dead grass had accumulated along the right of way, appellee's liability is established. Section 1 requires that railroads maintain fences to prevent domestic animals from getting onto the right of way except at crossings where cattle guards are required, and that ‘when such fences or cattle-guards are not kept in good repair, such railroad corporations shall be liable for all damages which may be done by the agents, engines or cars of such corporation, to such cattle, horses, sheep, hogs or other stock thereon, and reasonable attorney's fees in any court wherein suit is brought for such damages, or to which the same may be appealed,’ etc. Section 1 1/2 of the act is as follows: ‘It shall be the duty of all railroad corporations to keep their right of way clear from all dead grass, dry weeds, or other dangerous combustible material, and for neglect shall be liable to the penalties named in section 1.’ The question then is whether sections 1 and 1 1/2 fix liability for damages in a case of this character where those sections have been violated, regardless of how, or by whom, the fire originated. Appellant says that they do. Appellee, on the other hand, says that section 1 1/2 is to be read with section 1 which declares the railroad corporation which has failed to properly fence its right of way liable for damages ‘which may be done by the agents, engines or cars of such corporation,’ including attorney's fees, and that the language, ‘shall be liable to the penalties named in section 1,’ relates both to the damages done by the agents, engines, or cars-in short, the operation of the road-and attorney's fees. Appellant, on the other hand, argues that ‘penalties' relates only to attorney's fees and that damages for the acts done in the operation of the road are not to be considered penalties. Considerable argument is indulged in the briefs on the question whether damages may be considered a penalty.

The purpose in construing a statute is to determine the intention of the General Assembly. It may be argued with force that the Legislature intended by the term ‘penalties' to include more than attorney's fees, which is but one penalty. Correct construction of legislative language may not always be reached by a too dogmatic adherence to lexicographical definitions, but statutory construction is to be determined by also considering the objective of the legislation and the evils to be cured. No case has been cited to this court, and we know of none, in which this court has interpreted section 1 1/2 of this statute. Appellant argues that the purpose of the statute has been stated by this court to be to prevent the spread of fire from the right of way to other property. In support of this view, counsel cite Checkley v. Illinois Central Railroad Co., 257 Ill. 491, 100 N.E. 942,44 L.R.A.(N.S.) 1127, Ann. Cas.1914A, 1202;Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Hamilton, 200 Ill. 633, 66 N.E. 389;Chicago & Alton Railroad Co. v. Glenny, 175 Ill. 238, 51 N.E. 896;Chicago & Eastern Illinois Railroad Co. v. Goyette, 133 Ill. 21, 24 N.E. 549; and Peoria, Decatur & Evansville Railway Co. v. Duggan, 109 Ill. 537, 50 Am.Rep. 619. These are cases in which the fire was started through the operation of the road. Appellee, on the other hand, says that the purpose of the statute is to require the payment of damages where dangerous combustible materials have been allowed to accumulate on the right of way and a fire has been started ‘by the agents, engines or cars' of the railroad as provided in section 1. In other words, that to render appellee liable under the statute it is necessary that it appear from the evidence that the fire arose through some act in the operation of the railroad, and that in no case in this state, cited by appellant, has it been held that a fire, though started on the right of way, if started by some other agency, will result in liability to that railroad even though section 1 1/2 of the statute has been violated. Appellant's counsel do not argue that in the absence of section 1 1/2 appellee would be liable for damages occasioned by fire which was not started through the negligence of its employees or agencies. Clearly, in the absence of the statute, the rules of common-law negligence would not permit a recovery on the first four counts of this complaint as they do not amount to charging negligence of appellee as the proximate cause of the injury. It is a rule, long established and often announced, that liability for negligence must be based upon such relationship between the act and the injury that the act may be said to be the proximate cause of the injury. It is also the rule that the intervention of independent concurring or intervening forces will not break causal connection if the intervention of such forces was itself probable or foreseeable. Wintersteen v. National Cooperage &...