The Chicago v. Pennell

• Decision Date: 31 January 1880
• Citation: 94 Ill. 448,1880 WL 9970
• Parties: THE CHICAGO AND ALTON RAILROAD COMPANYv.WILLIAM A. PENNELL.
• Court: Illinois Supreme Court

94 Ill. 448

1880 WL 9970 (Ill.)

THE CHICAGO AND ALTON RAILROAD COMPANY

v.WILLIAM A. PENNELL.

Supreme Court of Illinois.

January Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean county.

Messrs. WILLIAMS, BURR & CAPEN, for the appellant.

Messrs. BLOOMFIELD & HUGHES, for the appellees.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action brought to recover the value of a certain building, known as the “Normal Hotel,” and the furniture therein, which were destroyed by fire on the night of February 14, 1872.

The track of the Chicago and Alton Railroad Company crosses the track of the Illinois Central railroad at the town of Normal. At the crossing of the two roads appellant erected a depot building, which was a one-story frame, with a baggage room near by it. The hotel, a frame building four stories high (including the basement) with mansard roof, stood about sixty feet in a south-east direction from the baggage room.

On the night of the fire, and between twelve and one o'clock, a freight train on appellant's road passed Normal, going north-east. A short time after the train passed, the depot building was discovered to be on fire. After the depot had nearly burned down, a fire broke out in the hotel, which in a short time destroyed the entire building, and, as is claimed, the principal part of the furniture.

Appellee claims that the fire in the depot originated from sparks thrown from appellant's locomotive, and that the hotel caught fire from the burning of the depot.

In the first count of the declaration it is averred that on the 14th of February, 1872, defendant had a passenger and freight office standing in close proximity to its railroad track in Normal, Ill.; that plaintiff was owner of a large hotel and furniture therein of great value; that it was the duty of defendant to have used and kept in repair complete and safe engines only, and provided with the best approved appliances and modern inventions to prevent the escape of sparks and fire, but defendant negligently ran a defective, worn-out and unsafe locomotive engine without its being provided with the necessary mechanical contrivances and modern improvements to prevent the escape of sparks and fire; that in consequence of the neglect of defendant in running said engine so constructed and out of repair, fire was communicated from the engine to the passenger and freight office and thence to the hotel building, whereby said hotel and furniture were burned, etc.

The second count is like the first, except it is averred that it was the duty of defendant to have used the utmost caution and diligence in running and the management of its engines to prevent the escape of sparks and fire; that defendant negligently suffered a locomotive engine, with a train of cars attached, to be run in so negligent and careless a manner that fire was communicated from the engine to a building on defendant's right of way and between the railroad track and said hotel building, whereby it with its furniture was destroyed.

The third count is like the second, except it was that sparks from the engine were communicated directly to the hotel building. The declaration contained a fourth count, but as no recovery is claimed under that count, it will not be necessary to refer to it.

In regard to the issue presented by the first count of the declaration, the decided weight of the evidence seems to be that the railroad company was not in fault. The law, doubtless, required defendant to use every possible precaution, by the use of all the best and most approved mechanical inventions, to prevent loss from fire along the line of its road, as held in Chicago and Alton Railroad Co. v. Quaintance, 58 Ill. 389. Upon this point the testimony of the master mechanic of the defendant would seem to leave no room for doubt. He said, “I examined the engine after it got back from Chicago on the same trip, after the fire; it came back on the regular trip with freight; it was in first-class condition. * * The netting used is of iron wire, 4x4 or 16 holes to the inch. The smoke stack was in perfect condition. There were no holes in the netting, which had been put in new the November previous. It was then and still is the most approved form of netting for a smoke stack. We know nothing better, and still use it.”

Now, if the evidence of this witness was true, and he was not impeached, nor was his character for truth and veracity called in question, we fail to see wherein the railroad company was in fault, in so far as furnishing a safe and well constructed engine is concerned. It is true there was some evidence of a rumor among the employees of the road that the engine was worn-out and not safe; but such testimony can not overcome the clear and direct proof of the master mechanic, who had charge of the engine, on such a question. In regard to the issue formed under the averment of the third count, that sparks from the engine were communicated directly to the hotel building, there seems to be no proof to sustain the averment; and it will not be necessary to spend time considering the issue formed under this count of the declaration.

We now come to the second count of the declaration, under which, doubtless, the recovery was had. The engine in use on the road on the night the fire occurred was a coal-burning engine, and it is claimed that wood was used by the fireman, and this is said to be negligence on the part of the company. If the...