Thorgrimson v. Northern P. Ry. Co.

• Decision Date: 10 August 1911
• Citation: 64 Wash. 500,117 P. 406
• Court: Washington Supreme Court
• Parties: THORGRIMSON et al. v. NORTHERN PAC. RY. CO.

117 P. 406

64 Wash. 500

THORGRIMSON et al. v. NORTHERN PAC. RY. CO.

Supreme Court of Washington

August 10, 1911

Department 2. Appeal from Superior Court, King County; John F. Main Judge.

Action by O. B. Thorgrimson, as receiver of the Olympic Roofing Company, and another against the Northern Pacific Railway Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

Elias A. Wright and E. M. Farmer, for appellants.

C. H. Winders, for respondent.

CHADWICK J.

This action was brought to recover damages on account of the destruction by fire of the plant of the Olympic Roofing Company. The property destroyed was about 80 feet south of the main line of the Northern Pacific main track, on what is known as its 'Seattle Division.' The plant consisted of two buildings, connected by a plank platform about 24 feet wide. The buildings were covered with corrugated iron. The train which is alleged to have set the fire was going upgrade past the Olympic company's plant, at about 11 o'clock at night. The train was observed by only one witness, who testified that it was working hard, 'about like other trains would work' on that or other similar grades. He passed the property after the train had passed him and observed no fire of any kind, although he thinks he would have done so had it then broken out. The company employed a night watchman who was reading a magazine when the train passed. He testifies, that there was nothing that particularly attracted his attention; that the train worked as other trains worked in going over that divide; that it was customary, and it was done in this instance, to cut the train at some place above appellant's plant, and to take the train over the heavier part of the grade in sections; that this was done on the night in question; that after the train had passed, he cooked his midnight supper; that about three-quarters of an hour after the last section had gone up and hence an hour or more after the engine had passed the plant, he noticed a light through the window of his cabin; that he ran out and found the platform between the two buildings ablaze. He endeavored to get in one of the buildings, but was unable to do so, and the fire passed beyond his control. From a verdict in favor of the defendant, plaintiffs have appealed.

The negligence alleged in the complaint is that respondent, was negligent in the maintenance of its right of way, in that débris had been allowed to accumulate thereon, and that the engine was defective and not equipped with proper spark arresters, and was negligently operated by respondent's servants. Appellants failed to make any sufficient showing of defective equipment or negligent operation to go to the jury and these features of the case were taken from the jury by the trial judge. The jury found with respondent upon the remaining issue--that is, the alleged negligence in caring for the right of way--so that question need not be discussed. Although the record is long and the briefs cover a wide range, we think the question for our decision is a simple one.

The rule putting the burden on the railway company to explain the cause of a fire following a passing engine, to which this court is probably committed ( Overacker v. Northern Pacific Ry. Co., 117 P. 403 just decided) and which counsel relied on to carry the case to the jury on the questions of equipment and operation, is one of necessity, and is applied so that justice may not be defeated. But we know of no cases going to the extent to which counsel would have us go to sustain their contention; that is, to presume negligence from the mere passing of the train followed by a fire. It is the proof of setting the fire, and not the fact that a building adjacent to a railroad right of way was burned, that raises the inference of negligence and shifts the burden of proof. In all the cases we have examined, including those from our own court, where the burden has been shifted from plaintiff to defendant, there has been some evidence from which the jury might infer with reasonable certainty that the fire would not have occurred unless set by the passing train. Counsel admitted on the trial and appellants now admit that they have no evidence other than circumstantial evidence.

Negligence of the character alleged may be proved by circumstantial evidence (13 Am. & Eng. Ency. Law, 510), but the difficulty in this case is, that the mere fact that the building burned an hour or more after a train had passed is not a circumstance showing the negligence of respondent, but is the ultimate fact, proof of which is essential and which, being proven, raises the question--not presumption--whether the respondent's engine was properly equipped and properly operated, a fact which the books say can be explained only by the respondent company. So long as the origin of the fire is open to doubt or speculation, there is nothing for the rule contended for by appellants to operate on. Reduced to its last terms, the rule as we extract it from the cases and as stated by Thompson in his work on Negligence, § 2292, is that 'the mere fact of ignition, when it is shown to have proceeded from the locomotive, is prima facie evidence under the principle of res ispa loquitur.' The fault in appellants' case is that it is not shown by any direct evidence that the fire proceeded from the locomotive, or that it was discovered so soon after the passing of the train as to reasonably exclude any other cause, or that the appliances were defective, or that there was negligent operation. Some one or all of these things must be shown in order to shift the burden of explanation.

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