Union P. Ry. Co. v. De Busk

• Decision Date: 01 March 1889
• Citation: 12 Colo. 294,20 P. 752
• Parties: UNION PAC. RY. CO. v. DE BUSK.
• Court: Colorado Supreme Court

20 P. 752

12 Colo. 294

UNION PAC. RY. CO. v. DE BUSK.

Supreme Court of Colorado

March 1, 1889

Appeal from district court, Jefferson county.

This was an action instituted by appellee (plaintiff below) against appellant (defendant below,) to recover the value of a quantity of hay, of which plaintiff claimed to be the owner, and which was alleged to have been set on fire and burned by the operation of defendant's locomotive and cars through the premises where said hay was being put up the fire being communicated from the locomotive to the growing grass, and thence to the hay. The defendant moved to quash the service of the summons on the ground that one Armor, upon whom the same was served, was not an agent of defendant upon whom service could be legally made, supporting said motion by affidavit. This motion was denied. The defendant then filed a plea in abatement, praying that the summons and return thereon be quashed, for the same reasons substantially, as set forth in the motion. Upon this plea issue was joined, and trial had; the court finding in favor of plaintiff, and holding the service sufficient. The defendant then filed its answer to the merits, denying specifically several allegations of fact in said complaint denying that the grass or hay of the plaintiff was consumed and denying all damages; also specifically alleging that the injury or damage was not caused in any way or manner by the default or negligence of the defendant. Upon plaintiff's motion the court struck out of the answer all those parts which alleged that plaintiff had not been injured or damaged in any way or manner through the default or negligence of the defendant, on the ground that the same was irrelevant redundant, immaterial, and insufficient. The case was then tried upon its merits. At the close of plaintiff's testimony the defendant moved for non-suit on the grounds that the court had not acquired jurisdiction; that the complaint did not state a cause of action; and that there was no evidence connecting the defendant with the fire. This motion was denied. No further evidence being offered, the court, at the request of plaintiff, instructed the jury to the effect that, if they believed from the evidence that plaintiff was the owner of the hay, and that the same was consumed or injured by fire caused by sparks escaping from defendant's locomotive, as charged in the complaint, then the defendant was liable, and that the jury should assess his damages at the value of the hay consumed. The defendant requested the court to instruct the jury that they should find a verdict in favor of defendant, unless they believed from the evidence that the fire testified to occurred through the default or negligence of defendant. The court refused to give this instruction. The plaintiff had a verdict. Defendant's motion for a new trial was overruled, and judgment was entered. The defendant brings this appeal, and assigns for error the several rulings of the court as above stated.

Teller & Orahood and E. R. French, for appellant.

J. W. Horner, for appellee.

ELLIOTT J., ( after stating the facts as above.)

The early decisions in this state have been uniform to the effect that by a general voluntary appearance all objections to the summons and return thereof, and to the jurisdiction of the court over the person of the defendant, are waived; and that the filing of a demurrer or answer to the complaint constitutes such an appearance Jones v. Stevens, 1 Colo. 67; Creighton v. Kerr, Id. 509; Wyatt v. Freeman, 4 Colo. 14; Smith v. District Court, Id. 235. The Code of 1877 contains the following provisions, which have remained unchanged since that date: 'Sec. 46. From the time of the service of the summons in a civil action the court shall be deemed to have acquired jurisdiction, and to have control of all subsequent proceedings. A voluntary appearance of a defendant shall be equivalent to personal service of the summons upon him.' 'Sec. 396. A defendant shall be deemed to appear in an action when he answers, demurs, or gives the plaintiff a written notice of his appearance.' In the face of these plain, unqualified provisions the dearth of recent Colorado authorities upon the subject may be readily accounted for.

The decisions in Telegraph Co. v. Conant, 11 Colo. 111, 17 P. 107, in no way militates against the foregoing views. In that case the defendant 'appeared specially,' and moved to quash on the ground that the summons was not served upon the proper agent. The motion being denied, the defendant 'made no further appearance,' but proceeded by certiorari to reverse the judgment for want of jurisdiction. There was no general appearance. The merits of the case were not contested in the court below. The case of Lyman v. Milton, 44 Cal. 630, if in conflict with the foregoing, cannot be accepted as authority. In that case it seems the court refused to permit a special appearance on behalf of an infant for the purpose of moving to quash a defective summons. There was no such refusal in this case. On the contrary, the defendant was permitted to attempt--first by motion, and then by plea--to quash the return of the writ.

The evidence was sufficient to warrant the inference that the fire was caused by the defendant's passing train, as alleged in the complaint; several witnesses testifying, in substance, to the springing up to the fire immediately upon the passing of the train, and that there was no fire on the premises before, and no other apparent cause for the fire. From the nature and circumstances of such cases considerable latitude must be allowed in the introduction of testimony, and in the drawing of inferences as to the origin of the fire. 1 Thomp. Neg. 159; Railway Co. v. Jones, 9 Colo. 379, 12 P. 516; Butcher v. Railroad Co., 8 P. 174.

By the ancient common law it was held that a person in whose house a fire originated, which afterwards spread to his neighbor's property and destroyed it, was forced to make good the loss, whether the person in whose house the fire originated was negligent in respect to the fire or not; and subsequently it was held that such person would be responsible for fire in his field as well as in his house, on the ground that a person who makes a fire must see that it does no harm, and must answer the damage if it does any. Sic utere tuo, ut alienum non loedas. As late as 1858, in the English court of exchequer, BRAMWELL, B., used the following language to the jury: 'If, to serve his own purposes, a man does a dangerous thing, whether he take precautions or not, and mischief ensues, he must bear the consequences; that running engines which cast forth sparks is a thing intrinsically dangerous; and that if a railway engine is used which, in spite of the utmost care and skill on the part of the company and their servants, is dangerous, the owners must pay for any damage occasioned thereby.' But in 1860 it was held, on an appeal of the case to the exchequer chamber, reversing the court of exchequer, that a railway company authorized by the legislature to use locomotive engines is not responsible for damage by fire occasioned by sparks emitted therefrom, provided it has taken every precaution in its power, and adopted every means which science can suggest, to prevent injury from fire, and is not guilty of negligence in the management of the engine. Vaughan v. Railway Co., 5 Hurl. & N. 678; see 1 Thomp. Neg. 122 et seq., and notes.

Colorado having adopted the common law of England so far as applicable, etc., and the acts of the British parliament in aid thereof, etc., as they existed prior to the fourth year of James I., (Laws 1861, p. 35,) it would seem as a first impression that our statute making railway companies unconditionally responsible for their fires is not a change of the law, but declaratory merely. But for some reason, perhaps because the common law in reference to the liability for damages caused by accidental fires was not considered applicable to our condition as a new country, the uniform current of decisions in America has been, in the absence of statute, to the effect that negligence or misconduct is the gist of the liability of railroad companies for injuries caused by fire escaping from their engines though the authorities are in hopeless conflict as to which party must assume the burden of proof in such cases. Generally the burden of proving negligence rests upon the party alleging it. Hence the rule is held in many states that the plaintiff must offer some proof tending to show negligence on the part of the railroad company, and that the destruction of property by fire does not, of itself, raise a presumption of negligence. It is said the plaintiff must go further, and prove some positive act of negligence, or at least something from which it may be inferred,--as the defective construction of the engine, the unusual size of the sparks, the improper velocity of the train, or the like. On the other hand, in nearly, if not quite, as many states the rule is held that, the origin of the fire being proved against the railroad company, the burden devolves upon the company to show that it has used all necessary precautions to avoid doing such mischief. The reasoning in support of the latter rule may be stated thus: Since the railroad company is not to be held responsible for damages occasioned by fire from its engines, provided it has not been guilty of negligence in the management of its engine, and has taken every precaution in its power, and adopted every means which science can suggest, to prevent injury from fire, therefore it must prove these affirmative acts of diligence in order to bring itself within the terms of the proviso. It is said with great force that this does not require the company to prove a negative,...