Union Pac. Ry. Co. v. Keller

• Decision Date: 01 February 1893
• Citation: 54 N.W. 420,36 Neb. 189
• Parties: UNION PAC. RY. CO. v. KELLER.
• Court: Nebraska Supreme Court

36 Neb. 189

54 N.W. 420

UNION PAC. RY. CO.

v.KELLER.

Supreme Court of Nebraska.

Feb. 1, 1893.

Syllabus by the Court.

1. In an action to recover damages for loss occasioned by railway fires it devolves on the plaintiff to prove by a preponderance of the evidence that the fire was communicated by sparks or cinders from the railway engines.

2. It need not be proved that any particular engine was at fault, but it will be sufficient if it is proved that the fire was set by any engine passing over the defendant's railway; and the evidence may be wholly circumstantial,--as, first, that it was possible for fire to reach the plaintiff's property from the defendant's engines; and, second, facts tending to show that it probably originated from that cause, and no other.

3. Where the proof shows that a fire originated from an engine running over the defendant's railway, it is unnecessary for the plaintiff to show affirmatively any defect in the construction or condition of the engine, or any negligence in its management. Negligence will be presumed from the fact that fire was set out.

4. Evidence held to sustain the verdict, and there is no material error in the record.

Error to district court, Buffalo county; Church, Judge.

Action by Emil Keller against the Union Pacific Railway Company. Plaintiff had judgment, and defendant brings error. Affirmed.J. M. Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error.

Gillespie & Murphy, for defendant in error.

MAXWELL, C. J.

This is an action to recover damages for the destruction by fire of a granary and about 1,200 bushels of oats on the plaintiff in error's right of way at Kearney. On the trial of the cause in the court below a verdict was returned for the sum of $300, upon which judgment was rendered. The plaintiff below in his petition alleges, in substance, “that on or about the 29th day of September, 1888, the plaintiff was the owner of a certain granary, containing about 1,200 bushels of oats, situated on the defendant's right of way in the city of Kearney, Nebraska, ‘by and with the consent and permission of said defendant;’ that on or about the 29th day of September defendant, by its servants, etc., in operating and running its engines over said line of road at or near said granary, negligently and carelessly permitted an engine to cast out sparks and coals of fire therefrom, which set on fire combustible material situated on defendant's right of way; that said fire spread onto and over the granary of said plaintiff, and totally destroyed the same, without any fault or negligence on the part of the plaintiff; that the granary was worth the sum of $75; that it contained 1,200 bushels of oats, whose market value at the time of the fire in the city of Kearney was 25 cents per bushel.” Judgment prayed for $375, with interest at the rate of 7 per cent. per annum from the 29th day of September, 1888, with costs.

In its answer the railway company denies that Keller was the owner of the granary destroyed; denies that he built the same on the company's right of way with the consent of the company; denies that it negligently and carelessly permitted one of its locomotives to cast out sparks and coals of fire, or permitted its engines to set out fire; denies that the plaintiff's building was of the value of $75, or that it contained 1,200 bushels of oats; and denies the damage, etc. It also alleges that the plaintiff's granary was erected on that portion of the right of way held by the Bogue & Sherwood Company under a written lease which exempted the company from liability for loss by fire, etc. The reply is a general denial.

The testimony tends to show that one David Bohrer erected the building in question to store grain in to ship over the railway. The building was erected with the understanding that it should be moved off the right of way whenever the company demanded. Bohrer does not seem to have shipped any grain, but sold the building to Keller, who seems to have had a large quantity of oats therein for shipment. The testimony also shows that before the fire the company had leased the ground on which the building stood, with other ground, to the Bogue & Sherwood Company; that that company had erected coal sheds on a part of the ground so leased, but did not need the ground on which the granary stood, and therefore consented to permit the building to remain for a time. So far as we can see, the Bogue & Sherwood Company's lease does not enter into the case. There is testimony in the record tending to show that engine No. 805 passed through Kearney shortly before the fire, going west; that this engine set out fire at five different places along the railroad a short distance east of Kearney. There is also testimony from which the jury would be justified in finding that the engine in question set out the fire. Certain witnesses were called to prove that the engine in question was in good repair, and had modern appliances to prevent the escape of fire. The scope of this testimony may be inferred from that of W. S. Dolson. He testified in regard to the fire as follows: “Question. Do you know how long before that there was any engine in the yard? Answer. I cannot say positively. I know there had not been any in the yard for two hours. Q. State what locomotive you were handling that day. A. 805. Q. How long have you been acting in the capacity of fireman and locomotive engineer? A. About nine years. Q. State your experience in handling engines. A. I have served about three years running one, and over six firing. Q. State what are the most approved appliances, if any are used, to prevent the escape of fire from a locomotive. A. They have kind of a reflecting plate and a fine netting. Q. State if at the time you were handling this engine on this day your engine was properly provided with a proper reflecting plate. A. Yes, sir; and a proper netting also. Q. State if you examined it. A. No, sir; I did not examine it myself. The engines are overhauled every trip. Q. State if your engine was throwing any fire during this trip. A. She was throwing no fire, to speak of, that I could see. Q. State if she was throwing fire while you were running through the yard. A. We were not working any steam to amount to anything, and in working no steam an engine will not throw any fire. Q. Explain how it is that in working no steam an engine will not throw any fire. A. In working steam the exhaust draws the fire, through the flues, out of the stack; but if she is shut off there is no exhaust, and we cannot throw any. Q. You were running in the yards without working steam? A. Yes, sir. I pulled off with a few cars, and then backed down. There was only two or three cars, and they would not work the engine hard enough to throw fire.” He also states that on the straight smokestacks they do not use spark arresters; some other device being substituted.

The court instructed the jury as follows: “(1) To warrant the jury in finding for the plaintiff, you must first determine from the evidence whether the fire which occasioned the damage complained of originated from the engine of defendant, as averred in plaintiff's petition; and, in addition thereto, you must find that the fire originated from the negligence of defendant's servants by means of their carelessness, or by means of defective engines or machinery, and the plaintiff did not directly by his own negligence contribute towards the destruction of the house and oats sued for herein. (2) If the evidence fails to satisfy you that the fire which caused the injury originated from the defendant's engine, you will inquire no further, and at once render a verdict for the defendant; and you will bear in mind that it is incumbent upon the...