Watt v. Nevada Cent. R. Co.
| Decision Date | 07 April 1896 |
| Parties | WATT v. NEVADA CENT. R. CO. (No. 1,457.) |
| Court | Nevada Supreme Court |
Appeal from district court, Lander county; A. L. Fitzgerald, judge.
Action by George Watt against the Nevada Central Railroad Company to recover for loss of property caused by fire from defendant's engine. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed.
O. A Murdock, James F. Dennis, and Dickson, Ellis & Ellis, for appellant.
Henry Mayenbaum, for respondent.
This action was commenced by the plaintiff in the district court of the state of Nevada in and for Lander county, to recover of the defendant damages for the destruction of a certain lot of hay, a hay press, and for injury to pasture land of the plaintiff, alleged to be caused by fire from the defendant's railroad engine. The case was tried by the court, without a jury, and judgment given in favor of the plaintiff for $10,060 damages, the value of the property destroyed, as found by the court, with legal interest and $1,289.70 costs. The defendant appeals from the judgment and order of the court denying the motion for new trial. One of the grounds on which said motion was based is "Insufficiency of the evidence to justify the decision of the court." The findings of fact on the issues made by the pleadings are very full and voluminous, and to each material finding the defendant excepted, on the ground "that the same is wholly unsupported by the evidence and contrary thereto."
Appellant's counsel argues that the findings are not supported by competent evidence, and this court is asked to exclude all incompetent evidence from its consideration in reviewing the testimony, to determine its sufficiency or insufficiency to support said findings. But evidence may tend to prove the issues in a case, and yet be incompetent. If such evidence be admitted at the trial of a cause, full weight must be given it in considering the question whether or not the evidence is sufficient to sustain the findings. Vietti v. Nesbitt, 41 P. 151, 22 Nev. 390; Sherwood v. Sissa, 5 Nev. 349; McCloud v. O'Neall, 16 Cal. 397; Pierce v. Jackson, 21 Cal. 636; Haynes, New Trials & App. § 98. In the present case all evidence offered was admitted without objection, by stipulation of the parties, except hearsay evidence. The argument of counsel is more pertinent to the question as to the weight of the evidence than to the matter of its competency.
There is no contention as to the sufficiency of the findings of fact to support the judgment, and we deem it necessary to consider but a few of the many findings, and review but portions of the evidence upon which they seem to be based. It is admitted by the defendant that its railroad track and right of way pass through the meadow land of the plaintiff where it is alleged the fire occurred and his property was destroyed. The court found "that on the 11th day of October, 1893, the defendant, while running its train of cars on said track and right of way over and across said lands, carelessly and negligently used and operated a locomotive engine defectively constructed, and carelessly and negligently omitted to use proper appliances to prevent the emission of sparks, burning coals, and fire from said engine, and carelessly and negligently omitted to keep the said right of way free and clear of dry and combustible materials, but carelessly and negligently permitted the accumulation of large quantities of dry grass and weeds on said right of way adjoining the said land of plaintiff, and negligently and carelessly permitted its said engine to emit and drop sparks, burning coals, and fire into said dry grass and weeds on said right of way adjoining plaintiff's said land; and thereby the defendant negligently and carelessly ignited and set on fire said grass and weeds, and negligently and carelessly permitted the said fire to spread in a continuous fire to said pasture lands, hay, and hay press, and carelessly and negligently permitted said pasture, hay, and hay press to be wholly destroyed by said fire, without any fault of the plaintiff."
Proper Appliances. Is the finding that the defendant negligently omitted to use proper appliances to prevent the emission of sparks, burning coals, and fire from the engine, supported by the evidence? It is admitted by the evidence on the part of the defendant that there was no wire or iron netting or screen in the ash pan of engine No. 1, the engine that hauled the train on the day the fire occurred. There is evidence on the part of the plaintiff that if there be no such netting in the back door of the ash pan, when the back damper is open, and the engine is moving forward, hot cinders and coals of fire are liable to, and do, drop out through the back door when the the damper is up, and are liable to ignite the oil which leaks more or less from the train, and set fire to combustible material on and by the side of the track; that there is naturally a certain amount of burning coals that drop into the ash pan, and, in the absence of such netting, the natural shaking of the engine in motion, when the damper is raised, will roll these coals out on the ground, and, if there be combustible matter on the ground, they will set it on fire; that, when these coals drop out, they may strike the ends of the ties, and roll three or four feet from the track; that it is necessary to have the back damper of the ash pan open to get draft; that both dampers are nearly always open, except when crossing a bridge; that, by some means, said engine No. 1 set six fires in passing along on a ranch adjoining the plaintiff's ranch, about a month before the fire in question. Walter Davis testified that he was engineer on this road about 2 1/2 years; that he quit about the middle of February, 1893; that he generally ran with both dampers open, except when going over a bridge; that he fired about 2 1/2 years for seven different men on this road before he became engineer; that these men always ran with both dampers open, and made him run that way. The testimony of Davis is pertinent as tending to show the habit on this road of running the engines with both dampers open. Railroad Co. v. Richardson, 91 U.S. 454. There is a great deal of other evidence tending to show the necessity of such netting in the ash pan to prevent fire escaping therefrom. On the contrary, there is evidence on the part of the defendant tending to prove that coals of fire or hot cinders will not escape through the door of the ash pan when the damper is up, even in the absence of said netting; that there is no necessity of having such netting; that the engineer who ran engine No. 1 on the day of the fire always kept the back damper of the ash pan closed; and that said engine was in good and safe condition, and had all the necessary appliances to prevent the escape of fire. We cannot say that the evidence is not sufficient to support the finding as to the want to proper appliances. At least, there is a substantial conflict of evidence with reference thereto, and in such case the appellate court will not interfere. Vietti v. Nesbitt, supra; State v. Yellow Jacket Silver Min. Co., 5 Nev. 415; Clark v. Mining Co., 6 Nev. 203. "The rule that the supreme court will not consider the weight of conflicting evidence has been so often reiterated as to become somewhat monotonous." McCoy v. Bateman, 8 Nev. 126. That it is the duty of a railroad company to supply its road with such engines as will be least liable to set fire, and be reasonably safe from destroying property of others along its line, is well settled. "A railroad company is obliged to employ the best known appliances to prevent injury to others from fire, and the failure to do so is want of ordinary care and prudence." Longabaugh v. Railroad Co., 9 Nev. 271; Railway Co. v. Rogers, 8 Am. & Eng. R. Cas. 710; Thomp. Neg. 154, 155.
Rubbish on Right of Way. As to the finding "that the defendant negligently omitted to keep the said right of way free and clear of dry and combustible material along and adjoining said land of plaintiff, and carelessly permitted the accumulation of large quantities of dry grass and weeds on said right of way adjoining said land," we are of opinion it is abundantly sustained by the evidence, which is without material conflict. The evidence is to the effect that the rye grass grows right along the side of the track from eight inches to three feet in height; that there was more or less dry stubble grass which had grown up in the center and on the edges of the track on the right of way through plaintiff's said land; that there was dry grass there all along the right of way; that the tall grass was not a foot from the end of the ties; that it extended along the track the length of the field; that, at the place of the fire there was quite a bunch of rye grass, more than at any other place along the line; that it was four or five feet high; that, when the fire occurred, this grass was very dry, as dry as it could be, and would easily take fire; that, in the fall of the fire, it had not been cut off any further than the end of the ties; that there was dry grass all along the right of way there, fifty feet on each side of the railroad, that was not cut; and that the dry grass they had cut between the rails was left there, and would easily ignite. We are of opinion that we are justified in saying that it is common knowledge, based on common observation, in this railway age, that railroad engines of the most approved construction, and with the best-known appliances, and managed by the most skillful engineers and firemen, are liable to, and do frequently, from necessity or by accident, emit sparks and fire, capable of igniting dry rubbish or combustible matter...
To continue reading
Request your trial