White v. Chicago

• Decision Date: 24 November 1890
• Citation: 47 N.W. 146,1 S.D. 326
• Parties: WHITE, Plaintiff, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY CO., Defendant.
• Court: South Dakota Supreme Court

1 S.D. 326

47 N.W. 146

M. & St. P. R’y Co.,(1890)

WHITE, Plaintiff, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY CO.,

Defendant.

South Dakota Supreme Court

Appeal from District Court, Moody County, SD

Hon. Louis W. Crofoot, Judge

Affirmed

John T. Fish

Winsor & Kittredge, Sioux Falls, SD

H. H. Field

Attorneys for appellant.

Rice Brothers

Attorneys for respondent.

Argued April 3, 1890. Opinion filed Nov. 24, 1890.

BENNETT, J.

The complaint alleges that plaintiff was, on and prior to the 10th day of October, 1885, the owner of, and in possession of, a farm house, valued at 250, situated on the N 1/2 of the NW 1/4 of section 25, township 107, and range 48, in Moody county, and that on that day the defendant so negligently managed its locomotives and engines on its road, and that they were so defective, that sparks escaped and set fire to the prairie adjacent to the premises of the plaintiff, which spread to and destroyed said dwelling house, damaging him in the sum of $260. The answer of the defendant is, in substance, a general denial. The cause was tried by a jury. A general verdict and several special verdicts were rendered. Exceptions to several of the special verdicts were taken by the defendant. A motion for a new trial upon a bill of exceptions was filed and heard, and denied by the court. Judgment rendered for the plaintiff, and an appeal taken.

The first exception or assignment of error is to the overruling by the court of defendant’s objection to the question, “What was your intention to do with the house?” The plaintiff had testified that he was the owner of the house and land situated as described in the complaint. The question was then asked him, “What was your intention to do with the house?” and the answer was, “I probably would have moved it, because I sold the land, all but the eighty it was on. I should have moved it from there, probably. I bought a house and lot here, and I could put it on that lot or two lots up here, if I wanted to. The value of the house was somewhere from 250 to $300, and it was burned up on the 10th day of October.” It may be true that the competency of the above testimony as to what plaintiff was intending to do with the house may be questioned; yet, if its admission has not resulted in any harm to the party objecting a reversal on that ground will not be granted. The nature of the property, its ownership, or its value was not disputed; neither what the plaintiff would do with the property if it had not been destroyed. The answer to the question could have no influence on the result, and the finding of the jury would have been the same if it had been excluded. The appellant in his brief endeavors to point out the difference in the measure of damages between real and personal property. His contention may be well taken when a cause involving that distinction arises,—which is not the fact in the case under consideration. The fact of the ownership of the house gave the plaintiff the right of recovery, and not the fact as to whether it was real or personal property, or as to what plaintiff intended to do with it.

“For the purposes of actions for injuries through negligence, many things which are attached to the realty, and a part of it, such as fruit trees, houses, timber, etc., are considered separate and distinct from it because they have a value which is distinct from the value of the land. Therefore, where buildings, trees, crops, etc., are destroyed or injured, the proper measure of damages is not the difference in the value of the land before and after injury, but of the buildings, trees, etc., themselves; and where buildings are destroyed by fire, the proper measure of damages is the value of the buildings when destroyed.”

2 Thomp. Neg. 1262; Burke v. Railroad Co., 7 Heisk. 451; Railroad Co. v. Salmon, 39 NJ Law. 316; Atkinson v. Railroad Co., 63 Mo. 367; Cleland v. Thornton, 43 Cal. 437: Freeland v. Muscatine, 9 Iowa, 461.

It is contended by the defendant that the finding of the jury is not warranted by the evidence. This contention is embodied in the third, fourth, and tenth assignments of error, and upon these we shall make a general review of the case, as upon these, in great part, this appeal depends. These are as follows:

“(3) That the court erred in not sustaining defendant’s motion to direct a verdict for the defendant at the close of the testimony introduced by the plaintiff.

(4) That the court erred in not sustaining defendant’s motion to instruct the jury to return a verdict for the defendant at the close of the entire testimony.

(10) That the court erred in not granting defendant’s motion for a new trial.”

An analysis of plaintiff’s testimony when he rested his case shows that on the 10th day of October, 1885, he owned the dwelling-house, as described in the complaint; that a locomotive and train of cars belonging to defendant passed, about 12 o’clock of that day, on defendant’s road; that in going up a grade in the road near the plaintiff’s house the locomotive wads laboring very hard, and emitting a large number of sparks; that no fire was seen previous to the passage of the train; that soon after it passed the prairie grass immediately adjacent to the track was seen to be on fire, which ran to and burned down and destroyed the dwelling-house aforesaid; and that it was worth from $250 to $300.

In an action for damages upon injuries caused by sparks, etc., from a locomotive, the plaintiff must not only prove that the fire might have proceeded from the defendant’s locomotive, but must show, by reasonable affirmative evidence, that it did so originate. It is not necessary, however, to prove this beyond a reasonable doubt. Evidence showing that the engine emitted sparks in size and number sufficient to account for the fire, and flying near the building or field actually caught fire, and that the fire was discovered very soon afterwards, no other cause being known, is sufficient to go to the jury, to show that the fire originated from the passing locomotive. Kenney v. Railroad Co., 70 Mo. 243, 80 Mo. 573; Sheldon v. Railroad Co., 14 NY 218. As was held in the case of Kelsey v. Railway Co., by this court, the decided weight of authority and of reason is in favor of holding that, the origin of the fire being fixed upon the railroad company, it is presumptively chargeable with negligence, and must assume the burden of proving that it had used all those precautions for confining sparks or cinders, so as to prevent the ignition of fire to surrounding combustible matter. The authorities were very generally collated in the above-mentioned case to sustain this proposition, and need not be repeated here. Such being the facts and the law governing them as the case stood at the close of plaintiff’s testimony, there was no error in not directing a verdict for defendant at that time.

We now come to the defendant’s side of the case. The rule in this state has been laid down by Chief Justice Tripp in Hannaher v. Railway Co., to be as follows:

“It has now become the settled law of this country and of England that the right of way obtained in every character permits railroads to use steam-engines in propelling their trains; and that if, in the necessary use of fire for the production of steam for such purposes, by the usual and best approved appliances, without negligence, sparks escape, and set on fire the premises of adjacent owners of property, such loss must be borne by the owners as one of the incidents of the operation of railroads.”

See, also, Spaulding v. Railway Co., 30 Wis. 110, 33 Wis. 582; Read v. Morse, 34 Wis. 315; Hoff v. Railroad Co., 13 Amer. & Eng. Rye. Cas. 476. The law does not require that engines shall be so constructed, equipped. or managed that the escape of sparks is impossible; and, although a fire may originate from a spark or cinder from a railroad locomotive, yet that, of itself, does not render the defendant liable, but it can only be held liable in case it appears by the evidence that there was negligence on the part of defendant in respect to the condition or the handling or management of its engines. A railway company is not liable, nor would any other person be liable, from the mere fact of the setting of the tire. Negligence in some way on the part of the company or any other person is necessary in order to form the basis of the liability for damages which occur; because fire may be used carefully and prudently by a railway company, or by any other person, and in that case, if it escapes by some unforeseen and uncontrollable circumstance, the railway company or other person using it is not liable. Railroads have the lawful right to use upon their right of way steam in propelling their trains. Steam can only be produced by the use of fire. That being so it is only necessary that it shall be used in such a way as shall, as far as practicable, prevent its escape, and so used with due regard to the rights of others that they may not suffer. It is therefore necessary that a railroad company, to prevent the escape of sparks, shall use the most improved appliances, which have been tested and found practicable. If they adopt such contrivances on their engines, and their engines are skillfully and carefully managed, and fire escapes from an engine notwithstanding such contrivances and...