The Toledo v. Pindar

• Decision Date: 31 January 1870
• Citation: 5 Am.Rep. 57,53 Ill. 447,1870 WL 6232
• Court: Illinois Supreme Court
• Parties: THE TOLEDO, PEORIA & WARSAW RAILWAY CO.v.HENRY PINDAR et al.

53 Ill. 447

1870 WL 6232 (Ill.)

5 Am.Rep. 57

THE TOLEDO, PEORIA & WARSAW RAILWAY CO.

v.HENRY PINDAR et al.

Supreme Court of Illinois.

January Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean county; the Hon. JOHN M. SCOTT, Judge, presiding.

This was an action brought by Henry Pindar and Robert Pindar, against the Toledo, Peoria & Warsaw Railway Company, to recover for the loss of a store house and its contents, by fire, communicated from a burning building owned by the company, from which the fire was blown across the street to plaintiff's store. The company's building was set on fire by means of sparks which escaped from a passing engine of the defendants. The plaintiffs recovered and the company appealed.

Messrs. INGERSOLL & MCCUNE, for the appellants, among other questions presented, insisted the injury was too remote to entitle the plaintiffs below to recover, citing Pennsylvania Railroad Co. v. Kerr, May term, 1870, Sup. Court Penn. and Ryan v. The New York Central Railroad Co. 35 N. Y. (8 Tiffany,) 210.

Mr. J. W. STRAIGHT, with whom were Mr. M. W. PACKARD and Mr. L. WELDON, for the appellees, upon the same question, cited Sedgwick on Meas. of Damages, 56, 65, 77, 85, 86, 123; 2 Greenlf. Ev. 256; 3 Pars. on Con. 179, 180, note v. 223, note d; 8 Pick. 356; Dickinson v. Boyle, 17 Pick. 78; Barnum v. Vandusen, 16 Conn. 200; Prusk v. Hartford & N. H. R. R. Co. 2 Allen, 332; Powell v. Salisbury, 2 Y. & Jer. 391; Fletcher v. Ryland, Law Rep. 1 Exch. 265; 12 Jur. N. S. 503; S. C. 11 ib. 714, cited in 1 Redfield on Railways, 457; Scott v. Shepherd, 2 W. Black. 892; King v. Higgins, 2 Ld. Raym. 1574; Parkhurst v. Foster, ib. 480; Roswell v. Prior, 12 Mod. 639; Harmon v. Toledo, Wabash & Western Railway Co. 47 Ill. 298; Bass v. Chicago, Burlington & Quincy R. R. Co. 28 Ill. 9; McClellan v. Illinois Cent. R. R. Co. 42 Ill. 355.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears from the record in this case, that about the first day of October, 1867, a train on appellants' road, in charge of the employees of the company, passed through the town of Fairbury. It appears that fire was communicated in several places in the village, which was extinguished without producing any serious injury. But the “Dresser Warehouse,” a building erected by the company, also took fire and was consumed. There being a high wind at the time, fire was blown across the street and communicated to the store of appellees, consuming the same, together with some $3600 or $3700 in treasury and bank notes, and a large amount of goods, as appellees contend. This suit was brought to recover for the loss, and on the trial below the jury found a verdict in favor of appellees for the sum of $14,000, upon which, after overruling a motion for a new trial, the court rendered a judgment, to reverse which this appeal is prosecuted.

It is insisted that there was carelessness on the part of the employees of the road, from which the injury resulted; that had due care been observed the accident would not have occurred, and the injury would have been avoided. It is also claimed that the engine threw an unusual quantity of sparks and fire, and owing to the dry weather and the highly combustible condition of the buildings near the road, the company are chargeable with gross negligence in failing to provide against the danger of communicating fire along the line of their road.

These bodies should be held to the exercise of due diligence in operating their machinery. They should be required to provide and keep constantly in use, and in proper repair, the most approved machinery to prevent fire from spreading from their engines to the farms and buildings along the line of their roads; and if an overload of their engines would, with the best appliances in use, in generating steam, produce the escape of sparks and fire to a dangerous extent, then such conduct would be gross negligence. But if the company have provided, and have attached and in proper condition the best appliances, and have only the proper amount of weight of train attached, then the company have not, in making up their train, or in attaching an engine thus equipped, been guilty of negligence, and unless wanting in some other requirement, they should not be held guilty of such...