Taffe v. Oregon R. & Nav. Co.

• Decision Date: 03 October 1911
• Parties: TAFFE v. OREGON R. & NAV. CO.
• Court: Oregon Supreme Court

117 P. 989

60 Or. 177

TAFFE v. OREGON R. & NAV. CO.

Supreme Court of Oregon

October 3, 1911

Appeal from Circuit Court, Wasco County; W.L. Bradshaw, Judge.

Action by I.H. Taffe against the Oregon Railroad & Navigation Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action for damages on account or the alleged destruction of plaintiff's cannery and cold storage warehouse by fire, occasioned by sparks emitted from defendant's locomotive. At the close of plaintiff's testimony defendant moved for a nonsuit on the ground that no evidence had been submitted sufficient to justify a verdict for plaintiff, which motion was overruled. After the conclusion of the testimony, defendant moved for a directed verdict which motion was also denied. Plaintiff had a verdict for $20,000, and defendant appeals. Other facts appear in the opinion.

A.C Spencer (W.W. Cotton and W.A. Robbins, on the brief), for appellant.

A.S Bennett (Bennett & Sinnott, on the brief), for respondent.

McBRIDE J. (after stating the facts as above).

It is difficult to discuss the matters included in the refusal of the court to grant a nonsuit or the motion for a directed verdict without discussing and comparing the testimony generally, and this course would involve incumbering the reports with a long detail of facts which would be entirely useless hereafter to the courts, the public, or the persons concerned. We will therefore state briefly the conclusions we have drawn from the testimony and apply the law to these findings.

The fire was discovered near the southeast corner of the cannery, between the hours of half past 1 and 2 o'clock in the afternoon of September 10, 1908. When first discovered, it was a small smoking spot, occupying only a few inches, but rapidly spread, destroying the cannery and other buildings northwesterly from the cannery. At a time variously estimated at from 10 minutes to a half hour, and probably about 15 minutes before the discovery of the fire, one of defendant's west-bound trains, drawn by a locomotive, burning coal, stopped at the platform, about 150 to 200 feet from where the fire originated; the engine being approximately in a southeasterly direction from the spot where the fire was discovered. About the time this train left, a locomotive, burning wood, of the Portage Railway, operated by the state of Oregon, and having attached to it two loaded cars, ran in on a track between defendant's track and the cannery, stopped at a distance of from 75 to 100 feet southeast from the place where the fire originated, switched to another track, and departed. The weather was exceedingly dry, the wind high, and there was no cause suggested for the fire, except that it started from the sparks from one or the other of these locomotives. From the testimony we have no doubt that it did so originate, and the principal contention of the defendant upon the trial seems to have been that the circumstances tended largely to indicate that the fire started from sparks from the locomotive of the Portage road, instead of from its own.

Under these circumstances, the direction of the wind, the condition and equipment of the locomotives, and the comparative liability of coal-burning and wood-burning locomotives to emit sparks became the principal subjects to which the testimony was directed. On behalf of plaintiff, witnesses were introduced, who testified substantially that the wind blew directly from where defendant's locomotive stood toward the buildings where the fire originated, and this testimony was somewhat strengthened by the circumstance that the buildings to the northwest of the cannery building were burned, while those to the west and southwest were not destroyed. There is also testimony tending to show that sparks emitted from burning coal would retain their vitality longer than sparks from wood; that defendant's train was...