Thatcher v. Maine Cent. R. Co.

• Decision Date: 23 June 1893
• Parties: THATCHER v. MAINE CENT. R. CO.
• Court: Maine Supreme Court

27 A. 519

85 Me. 502

THATCHER

v. MAINE CENT. R. CO.

Supreme Judicial Court of Maine.

June 23, 1893.

(Official.)

Action by Benjamin B. Thatcher against the Maine Central Railroad Company to recover for loss of lumber by fire alleged to have been communicated by defendant's locomotive. Plaintiff had a verdict, and defendant brings exceptions, and moves for a new trial. Motion and exceptions overruled.

The plaintiff's declaration contained four counts; two framed on the statute, (Rev. St. c. 51, § 64.) and two changing negligence at common law. The acts of negligence alleged were defective machinery, the want of sufficient spark arresters, wrongfully throwing sparks and cinders, and the want of suitable section men to watch and tend fires along the railroad. One of the counts upon the statute is as follows:

In a plea of the case, for that said plaintiff, at Milford, in said county of Penobscot, on the 16th day of April, A. D. 1890, owned and was possessed of certain property, to wit, certain boards, timber, and board sticks, as follows: 2,080,804 feet of pine box boards of the value of seventeen thousand dollars, and 51,851 feet of timber of the value of three hundred and sixty dollars, and 318,000 board sticks of the value of four hundred and seventy dollars, all of which were of the value of seventeen thousand eight hundred and thirty dollars, ($17,830,) which said boards, timber, and sticks were lawfully and properly piled and placed then and there on land of said plaintiff, and adjoining the railroad of the said Maine Central Railroad Company, and was then and there, and for a long time before had been, deposited there, and was then, and for a long time before had been, insured in the sum of twelve thousand dollars against loss by fire, and was such property as said Maine Central Railroad Company had an insurable interest in, and could have procured insurance thereon; and then and there said company, so chartered by the laws of the state, did own and operate a railroad adjoining said property of said plaintiff, and did then and there run and use by its servants and agents a locomotive engine and cars attached thereto, and on said day, at said Milford, while said locomotive engine was being run and used and operated on said railroad by said corporation, said property of plaintiff was injured and destroyed by fire communicated by said locomotive engine so being run and used by said corporation; and said plaintiff avers that his said property above named and so situated as above was totally destroyed at said time and place by said fire; that the sole cause of said fire and such injury and destruction of his property was the fire communicated by the locomotive engine so being used and run by said corporation."

By agreement of the parties, the question of damages was reserved at the trial to be subsequently determined, and only the question of liability was submitted to the jury, who returned a verdict for the plaintiff.

The defendant took exceptions, and filed a general motion for a new trial. The case is stated in the opinion.

J. W. Symonds and C. P. Stetson, for plaintiff.

Wilson & Woodard, for defendant.

LIBBEY, J. An action on the case to recover damages for the destruction of plaintiff's property by fire communicated by a locomotive engine used by the defendant company in its business. In his writ the plaintiff claims to recover on two grounds: First, by virtue of Rev. St c. 51, § 64; second, on the ground of negligence of the defendant and its agents and servants in the condition and management of its locomotive, by reason of which the fire was set and communicated to his lumber.

The presiding judge at the trial, for reasons satisfactory to himself, ruled that the plaintiff could not recover under the provisions of the statute referred to, which read as follows: "When a building or other property is injured by fire communicated by a locomotive engine, the corporation using it is responsible for such injury, and it has an insurable interest in the property along the route, for which it is responsible, and may procure insurance thereon." After the ruling of the presiding judge that the plaintiff had no remedy under this provision of the statute, the case was tried out upon the other claim set out in the writ, that the fire was communicated by the locomotive used by the defendant, by reason of some defects in it or negligence of its servants managing it, for which the defendant was responsible. The verdict was for the plaintiff upon this ground.

The case comes up on a motion to set aside this verdict, and on exceptions. It is admitted by the counsel for the defendant that, if the ruling of the presiding judge that the plaintiff could not recover under the statute is erroneous, and the evidence is sufficient to authorize the jury to find that the fire was set and communicated by the use of the defendant's locomotive, the question whether the evidence is sufficient to sustain the verdict on the claim of negligence is immaterial; and this presents the question at once whether the remedy of the plaintiff exists under the provisions of the statute.

On the facts disclosed and admitted by the defendant's counsel we think the plaintiff may recover in this case under the statute. There have been several cases before the court in this state involving the construction of this statute, but we think none of them upon a state of facts like those claimed by the plaintiff and admitted by the defendant's counsel in this case. The lumber destroyed was a large quantity of boards and other manufactured lumber stuck and piled by the plaintiff upon land in the vicinity of his mills, leased by him of the Bodwell Water Power Company, of about 25 acres in extent. The defendant's counsel, as is their usual custom, very correctly state the facts upon this part of the case. "The place where the plaintiff's boards were stuck before being used for the purpose to which he, and perhaps others, devoted it, was an uncultivated pasture. Afterwards, as the occasions of business required, boards were extensively stuck upon this place after being sawed at the adjacent mills, several tracks being put upon the place for the purpose of conveniently conveying the boards thereto and removing them therefrom. After being sawed, the boards are put on cars by the plaintiff and others; the cars are then hauled to the sticking ground, and the boards taken therefrom by the owners, and stuck, to remain until they are seasoned and sold. Then they are put back onto the cars by the owner, and shipped to whatever destination he sees fit to send them. The boards are placed on the sticking ground as they are sawed. Nobody then has any means of knowing how long they will remain there, and no notice was given to the railroad company as to the length of time they probably would remain there. As a matter of fact they frequently remain there for a considerable period of time according to the exigencies of business, some boards of the plaintiff having been there for a year to a year and a half, while all of them had been there nearly six months."

The evidence shows that this piling ground of the plaintiff had been used by him in connection with the manufacture of lumber at his mills in the manner stated for six years and more, the amount piled and stuck there frequently exceeding two millions. The defendant had full knowledge of these facts, and had extended to this piling ground several branch tracks over which the lumber was carried from the plaintiff's mills to it, and, when sold by him, taken...