White v. N.Y.

• Decision Date: 21 March 1901
• Court: Virginia Supreme Court
• Parties: WHITE . v. NEW YORK, P. & N. R. GO.

38 S.E. 180

99 Va. 357

WHITE .

v.NEW YORK, P. & N. R. GO.

Supreme Court of Appeals of Virginia.

March 21, 1901.

RAILROADS—FIRES—BURDEN OF PROOF—CARE REQUIRED—IMPROVED APPLIANCES.

1. Where, in an action against a railroad for damages for a fire claimed to have been caused by sparks emitted from defendant's locomotive, it is shown that the fire was started by sparks, the defendant has the burden of proving that it has availed itself of the best contrivances to prevent the escape of sparks.

2. Defendant's locomotive alleged to have emitted sparks which set fire to plaintiffs mill was shown to have been returned two weeks before the fire from the leading locomotive works, where it had been sent for repairs; and those who did the work testified the engine left their hands in good order, and equipped with the most approved appliances for preventing the escape of sparks. It appeared that on the day of the fire the engine had been inspected, and found in good order, which evidence was corroborated by photograph^ of the spark arrester taken soon after the fire. Held that, though the fire originated from sparks thrown from the locomotive, there could be no recovery, it appearing the railroad had discharged its duty by having employed the most approved appliances, in proper repair.

Error to circuit court, Accomac county.

Action by one White against the New York, Philadelphia & Norfolk Railroad Company. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

Westcott & Gunter and S. K. Powell, for plaintiff in error.

James H. Fletcher, Jr., for defendant in error.

HARRISON, J. This action was brought to recover damages for the destruction of a mill and contents, alleged to have been caused by fire communicated from the engine of the defendant railroad company. There were two trials. On the first there was a verdict in favor of the plaintiff, which was, on motion of the defendant, set aside as contrary to the law and the evidence. On the second trial no evidence was introduced, and a verdict rendered in favor of the defendant, which the court refused to set aside.

All the evidence adduced on the first trial was duly Incorporated in a proper bill of exceptions, and the sole question to be determined is whether or not the circuit court erred in setting aside the first verdict and granting a new trial.

In this case the burden is upon the plaintiff to show that the fire arose, as alleged, from sparks emitted by the engine in question. Where the origin of the fire is thus fixed upon the railroad company, it is presumptively chargeable with negligence, and must assume the burden of proving that it...