Van Dyke v. Grand Trunk Ry. Co. of Canada

• Decision Date: 25 January 1911
• Citation: 84 Vt. 212,78 A. 958
• Parties: VAN DYKE v. GRAND TRUNK RY. CO. OF CANADA.
• Court: Vermont Supreme Court

78 A. 958

84 Vt. 212

VAN DYKE

v. GRAND TRUNK RY. CO. OF CANADA.

Supreme Court of Vermont. Caledonia.

Jan. 25, 1911.

[Copyrighted material omitted.]

Exceptions from Caledonia County Court; Zed S. Stanton, Judge.

Action by George Van Dyke against the Grand Trunk Railway Company of Canada. Judgment for plaintiff on report of referee, and defendant excepts. Judgment affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Dunnett & Slack, W. B. C. Stickney, and Harry Blodgett, for plaintiff.

Hight & Hight, Harry B. Amey, and Young & Young, for defendant.

HASELTON, J. This is an action to recover damages sustained by the plaintiff in consequence of certain forest fires which burnt over lands in the county of Essex in the spring or early summer of 1903. The plaintiff claimed that these fires were communicated by locomotive engines on the line of the defendant corporation.

The case was tried by referees to whom it was referred "to be heard and tried according to the rules of the common law." Some discussion has been had as to the effect of this reference, since questions of law arising upon the face of the report were submitted to the trial court, and since, therefore, it is material to know whether the substantive rights of the parties are determined by our statute (P. S. 4510) or by the common law. In some of the plaintiff's counts he expressly declares upon our statute. The defendant filed the general issue with notice of special matter in defense in accordance with our statute. P. S. 1499. The reference of the case to be heard and tried according to the "rules of the common law" did not circumscribe the cause of action, nor affect the burden of proof, nor the right of the plaintiff to recover if he made out a case under our statute, nor any matter, which so far as appears, arose on trial. The referees found that four fires called, respectively, the pine stump fire, the stone dam fire, the gravel pit fire, and the Gilbert fire, were communicated by sparks thrown out of the defendant's engines, and, subject to the opinion of the court, they find that the plaintiff is entitled to recover damages in a sum stated for the injuries caused by these four fires.

Judgment for the plaintiff was rendered on the report.

The exceptions taken and relied on are to the overruling of a motion to recommit the report, to the overruling of exceptions to the report, and to the rendering of judgment on the report. The motion to recommit was addressed to the discretion of the trial court, and its ruling upon that motion was not matter for exception. In common with courts in general we have uniformly held to this doctrine. Jeffers v. Pease, 74 Vt. 215, 52 Atl. 422; Wilkinson's Adm'r v. Wilkinson, 61 Vt. 409 17 Atl. 795; Morse v. Beers, 51 Vt. 359. Adherence to this rule is necessary if trials by referees are to be a help, rather than a hindrance, in the administration of justice. It may be said or thought that there are exceptional cases in which from the defective character of a report which the trial court has refused to recommit grave injustice may befall one party or the other through the application of this rule. But in those exceptional instances in which this court feels that it ought not to dispose of a case with a referee's report standing as it does the court, whether or not a motion to recommit was made below, has and exercises the power to remand in order that a recommittal may be ordered. Life Ins. Co. v. Chase, 72 Vt. 176, 47 Atl. 825, 53 L. R. A. 510; Cleaveland v. Dinsmore, 59 Vt. 436, 8 Atl. 279; National Bank v. Strait, 58 Vt. 448. 3 Atl. 541. Thus the convenience and integrity of our system of trial by referees is preserved, vexatious delays are prevented, and yet the danger of a miscarriage of justice through a shortage of findings in respect of dominating facts is reasonably averted. The grounds of the motion to recommit will be pointed out in connection with the consideration of the defendant's exceptions to the report.

The defendant filed various exceptions to the report of the referees. These were overruled by the county court, and to the action of the court in overruling them the defendant excepted. The first exception to the report was taken because the referees did not find, as requested, that no steam locomotive has ever been built that can draw a train of cars upon a level, or upgrade, without emitting more or less sparks and cinders, and because the referees made no finding upon that subject As to this matter the referees report, in substance, that the defendant's evidence tended to support the request, and that the plaintiff introduced no evidence upon the point. Upon the general proposition of the request the referees make no finding. But the referees find from all the evidence "that the defendant's engines were in good condition and were well cared for in the respect of throwing fires, and that the defendant corporation used the latest and most improved methods as to screening the stacks of the engines to prevent throwing fire." This concrete finding covers the ground of the request so far as the defendant was entitled to have it covered. It exonerated the defendant from fault in respect to the construction and equipment and condition of its engines. It is said in argument that a finding in accordance with this undisputed evidence was needed for its bearing on the legal inference to be drawn from the fact that fire was communicated from the defendant's engines; that, as bearing on this legal inference, it is material to know whether there are engines in known practical use which do not emit sparks and cinders; that, if there are engines in known practical use which do not emit sparks and cinders when drawing trains, then, the operation of an engine which emits sparks sufficient to cause a fire may be evidence of negligence on the part of the defendant. It is to be observed in respect to this argument that the request did not relate to engines in known practical use, but that the referees were asked to find that no engine had ever been built that could even "draw" a train on an upgrade, or on a level, without emitting sparks. But in this state there is no legal inference of negligence consequent upon the mere escape from an engine of sparks without reference to their size or quantity or the distance to which they are thrown. When it is proved that fire had been communicated from an engine, the burden of proof as to negligence is shifted from the plaintiff to the defendant, not because of any legal inference of negligence on the part of the defendant, but merely as a matter of reasonable and convenient procedure. Huntley v. Rutland R. Co., 83 Vt. 180, 74 Atl. 1000; Ide v. Boston & Maine Railroad, 83 Vt. 66, 74 Atl. 401. This first exception to the report states one of the grounds of the motion to recommit.

The second exception to the report was taken on the ground that the referees failed to find, in accordance with the defendant's request, whether or not the train from which the fire was communicated which set the fire called the "pine stump fire" was or was not a heavy train for the two engines that were then drawing the train. The request was not in the alternative, but was for a finding that the train referred to was not a heavy train for the two engines that were then drawing it, and was one element of a fourfold request relating to that train. The referees found that the head engine at least was working lightly at the point in question, hut failed to find in express terms that the train was not a heavy one for the two engines. The report does not refer to the transcript of the evidence which consists of some 5,000 pages. In answering the defendant's request, the referees set it out as it was made, and this request incorporated by reference such portions of the evidence as the defendant chose to call to the attention of the court But the request even does not purport to contain a reference to all the evidence upon the point to which it refers. Smith v. Stannard, 81 Vt. 319, 70 Atl. 568; Holt v. Howard, 77 Vt. 49, 58 Atl. 797.

The witness whose testimony is evidently relied on as compelling a finding that the train was not a heavy one was the engineer on one of the locomotives. He did not remember how many cars were in the train, and we are referred to no evidence tending to show the nature of the freight carried. We find in the case a statement by counsel for the defendant that a train register kept at North Stratford, which counsel thought would show the number of cars in a train, had disappeared, and that a similar book kept at Island Pond had been destroyed. The engineer who testified that his locomotive was working light steam also testified that he did not know how the other engine was working, that he did not pay enough attention to it to really know. He then added that the other engine was working lightly. This last statement was obviously a guess or an impression. One or both of the engines must have been working hard enough to draw the train on an upgrade. How the matter stood upon the whole evidence we are, of course, unable to say. We have no reason to suppose that the referees did not give due consideration to the evidence adduced by the defendant, nor that the request was not answered as fully and as favorably to the defendant as a consideration of the whole evidence permitted. The report shows that the pine stump fire caught within the defendant's right of way, and only from 10 to 20 feet from the very track, at a place usually wet and marshy, but during the period in question dry and covered with dry grass. A finding that the train which passed this place just before the fire started was not a heavy one for the two engines that were drawing it, if the referees had been able to make such a finding and had made it, would not have been inconsistent with their ultimate finding and so would have been immaterial. This second exception states one...