The Toledo v. Larmon

• Decision Date: 31 January 1873
• Citation: 1873 WL 8129,67 Ill. 68
• Parties: THE TOLEDO, WABASH AND WESTERN RAILWAY CO.v.ISAAC LARMON, for use, etc.
• Court: Illinois Supreme Court

67 Ill. 68

1873 WL 8129 (Ill.)

THE TOLEDO, WABASH AND WESTERN RAILWAY CO.

v.ISAAC LARMON, for use, etc.

Supreme Court of Illinois.

January Term, 1873.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Champaign county; the Hon. A. J. GALLAGHER, Judge, presiding.

This was an action on the case, by Isaac Larmon, for the use of the Illinois Mutual Fire Insurance Company, against appellant. The facts are stated in the opinion of the court. On the trial in the court below, the plaintiff recovered judgment for $2124, and costs of suit.

Mr. O. L. DAVIS, Mr. I. B. MANN, and Mr. A. E. HARMON, for the plaintiff in error.

Mr. J. H. YAGER, for the defendant in error.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This action was brought to recover the value of a warehouse said to have been destroyed by fire occasioned by sparks from an engine. The warehouse was situated on the “Y” at the junction of the Illinois Central railroad with the road of plaintiff in error, at Tolono. Soon after the engine moved off the “Y” on to the main track the building was discovered to be on fire. It was an old one, and stood near the track, partly on the land of Larmon and partly on the right of way, and had been erected after the tracks were located as they now are, with a knowledge of the hazards from fire escaping from engines moving on the tracks of the two roads. It was covered with shingles, and the roof had never been renewed. Inflammable material had been permitted to accumulate on it. A portion of the roof descended in the direction of the track until it was not higher than the top of the smoke-stack of an engine.

It seems to us the evidence shows very clearly the engine alleged to have caused the fire was equipped with all the best and most approved appliances to prevent the emission of fire sparks, and it was in good repair at the time.

The difficult question in the case is, whether it was skillfully handled by a prudent and competent engineer. As to the negligence of the engineer in charge, there is a sharp and direct conflict in the evidence.

This being true, we think some of the instructions do not state the law with sufficient accuracy, and may have misled the jury.

At the request of the plaintiff, the court charged the jury, “It is the duty of the defendant, and was its duty, to operate its engines and locomotives, and run the same so as to guard against any accident by fire, and to employ such machinery and other agencies for safety to property as might be necessary to avoid accidental destruction, whether such machinery was in common use or not, on railroads.”

This is stating the duty of the company stronger than the law will warrant. The principle announced would make railroad companies guarantors or insurers against accidents by fire, no matter what machinery and appliances they might use, or what degree...