Toledo, St. Louis & Western Railroad Company v. Fenstermaker

• Citation: 72 N.E. 561,163 Ind. 534
• Decision Date: 29 November 1904
• Docket Number: 20,413
• Court: Supreme Court of Indiana
• Parties: Toledo, St. Louis & Western Railroad Company v. Fenstermaker

72 N.E. 561

163 Ind. 534

Toledo, St. Louis & Western Railroad Company v. Fenstermaker

No. 20,413

Supreme Court of Indiana

November 29, 1904

From Grant Superior Court; B. F. Harness, Judge.

Action by George Fenstermaker against the Toledo, St. Louis &amp Western Railroad Company for damages for negligently setting fires on his lands. From a judgment for the plaintiff on a verdict for $ 672, the defendant appeals. Transferred from the Appellate Court under § 1337u Burns 1901.

Affirmed.

C. G Guenther, Braden Clark, Clarence Brown and C. A. Schmettau for appellant.

J. A. Kersey, for appellee.

OPINION

Hadley, J.

Suit and recovery by appellee for fire damages. There were two fires--one on October 8, 1901, and one on April 22, 1902. There are two paragraphs of complaint--one based on the October and the other on the April fire--and each is predicated on the alleged negligence of appellant in using on its locomotive a defective and insufficient spark-arresting device.

The only assignment is the overruling of appellant's motion for a new trial. The grounds of the motion are the insufficiency of the evidence, the admission of improper evidence, and the giving and refusing of certain instructions.

It was in proof that the plaintiff's property was destroyed by fire as follows: His meadow on October 8 and his wood and timber lot, known as the "sugar-camp," on April 22--both of these lots lying north and adjoining appellant's right of way, which at that place runs east and west. On October 8, about noon, in a very dry time, and within five minutes after a freight-train went west on appellant's railroad, a fire was discovered in the dry grass of the meadow, beginning about two feet north of the right of way. There was at the time a brisk wind blowing towards the northwest, and the fire developed and spread so rapidly that it had burned over two-thirds of the field and consumed twenty rods of rail fence before it could be brought under control. On April 22, about 1 p. m., in an equally dry time, and within five minutes after a passenger-train went west, a fire broke out in the southwest corner of appellee's sugar-camp. There was a strong wind blowing from the southwest to the northeast. The surface of the sugar-camp was covered with dry grass, weeds, leaves, and brush. The fire went rapidly and violently ahead of the wind, mounting into the tops of some of the trees, and reached and consumed a log dwelling-house and all its contents, and destroyed about all the trees in the lot. Before the passage of the trains there was no fire at either place, nor in the vicinity, and had not been for an indefinite period, except that in a field of another owner, on the south side of the railroad, the northeast corner of which, but for the right of way, would have cornered with the southwest corner of appellee's sugar-camp, a plowman a few minutes before the passage of the train and the origin of the fire, at a point somewhere about twenty rods west of the sugar-camp corner, had fired and burned two piles of cornstalks that had been bunched in harrowing down the stalks. There was positive testimony of two witnesses that no fire escaped from the burning stalks. There was no direct proof in either instance that fire escaped from the passing locomotives and ignited the grass on appellee's land. Aside from the locomotives, the evidence discloses no known actual or probable cause of either one of the fires. On the other hand, appellant produced testimony that all its locomotives were equipped with a device that was in common use on the railroads in the country, and which was the best and most approved device known for arresting sparks, and which was in good condition on each of the locomotives at the time of the fires.

Appellant's counsel argue that to recover appellee must prove (1) that the fire which ignited the grass on appellee's premises came from the locomotives; and (2) that it escaped because of the defective or insufficient condition of the spark-arresters.

1. With respect to the first proposition it is contended by appellant that there was no evidence that the grass at either time was ignited by sparks from the locomotives. Courts have seldom gone so far as to hold it essential for a plaintiff to prove by direct and positive evidence that the fire complained of escaped from a locomotive. Such fires usually occur in broad daylight, when flying sparks are not plainly visible, and in many cases it would be manifestly unfair and unreasonable to give judgment against a plaintiff because he failed to produce a witness who saw the fire escape from the locomotive and fall upon the combustible matter. This and the other courts of the country generally have recognized the more just rule that where it is shown that there was no fire on the premises before, and no probable cause for the fire except the locomotive; that the wind was blowing from the road to the grass; and that the fire broke out soon after the engine passed--these things are circumstances sufficient to justify the conclusion that the fire was communicated by the train. Pittsburgh, etc., R. Co. v. Indiana Horseshoe Co. (1899), 154 Ind. 322, 56 N.E. 766, and cases collected on page 333. Under the rule the evidence fully warrants the finding that the fires complained of were set by appellant's passing trains.

But second, is it sufficiently shown that the fire escaped from appellant's engine through the company's negligence? The law recognizes the right of a railroad company to employ fire for the production of steam in the operation of its road, and, while the company is required to observe a high degree of care to prevent the escape of fire, yet when it has adopted and maintains, in good repair and condition, the device generally recognized and used by railroads as the best and most approved for the suppression of fire, it has done all the law requires of it; and if the engine equipped with such device is properly handled, and fire escapes notwithstanding such precautions, it must be regarded as an accident for which the railroad company is not liable. In the case at bar the complaint charges that the fires resulted from the negligence of appellant in using insufficient spark-arresters. The burden is upon the plaintiff to prove the negligence charged. ...