Wilson v. Bush
| Decision Date | 28 November 1911 |
| Citation | 73 S.E. 59,70 W.Va. 26 |
| Parties | WILSON et al. v. BUSH. |
| Court | West Virginia Supreme Court |
Submitted September 15, 1910.
Syllabus by the Court.
In an action for damages by fire alleged to have been caused by the negligence of a railroad company, proof of communication of the fire from an engine of the company raises a presumption of negligence, which the defendant must repel by showing proper construction, equipment, and operation of the engine to escape liability.
It is error to instruct the jury in such a case that the defendant must prove its engine was equipped "with the best approved appliance for preventing the escape of fire."
An owner of lumber depositing it on premises of a railway company adjacent to its right of way, in common with others primarily for shipment and incidentally for storage and preparation for shipment, in conformity with a license usage, and practice of long standing, at a place at which no railway agent is maintained, and at which rubbish and débris have accumulated on the track, the vacant strip alongside of it and the ground on which the lumber has been placed, and a dilapidated shed and platform, used for storage and loading stand, is not guilty of contributory negligence as matter of law.
Assuming evidence of negligence on the part of the defendant, the plaintiff's right to recover, in such a state of the evidence of contributory negligence, is tested by the inquiry whether he exercised such care and caution as a reasonably prudent and careful man would have exercised under like circumstances in placing his lumber upon the premises without providing for its care by some person.
(Additional Syllabus by Editorial Staff.)
In an action for fire caused by the operation of a railroad, an instruction that the railroad company had the right to operate its trains by the use of fire for the generation of steam, that plaintiffs must prove negligence in respect to its engines as a requisite to liability, and that plaintiffs assumed all risk of loss if the defendant operated its engines in a lawful manner and with reasonable care and skill, was erroneous in omitting the element of duty of the railroad company as to care of its track and right of way.
Error to Circuit Court, Randolph County.
Action by Mark S. Wilson and another, partners under the firm name of Wilson Bros., against B. F. Bush, receiver. Judgment for plaintiffs, and defendant brings error. Reversed and remanded for new trial.
Benj. A. Richmond and E. A. Bowers, for plaintiff in error.
Talbott & Hoover, for defendants in error.
Wilson Bros. recovered a judgment for $935 against B. F. Bush, receiver of the Western Maryland Railroad Company, as the value of certain lumber destroyed by fire, occasioned by alleged negligence of the defendant.
The refusal of the court to give defendant's instruction No. 2, placing upon the plaintiffs the burden of proving failure of the defendant to use ordinary care and prudence in selection of spark arresters for the engines from which the fire originated and in operating said engines and keeping the spark arresters in repair, is assigned as error. This instruction was properly refused for two reasons. It does not correctly propound the law. After a fire has been shown to have started from sparks emitted by an engine of a railroad company, the burden is upon the defendant to show that its engine was in good repair, properly equipped, and operated. Jacobs v. Railway Co., 68 W.Va. 618, 70 S.E. 369. Inconsistent doctrine is not enunciated in Snyder v. Railroad Co., 11 W.Va. 14. The clause in the third proposed instruction in that case, found in the syllabus thereof and relied upon here, was there disapproved. If it were a sound proposition, it was given as a part of defendant's instruction No. 5, and also substantially given in his instruction No. 3. Instructions need not be repeated. The defendant thus appears to have had more favorable rulings, upon the subject-matter of his instruction No. 2, than he was entitled to.
As an instruction, given at the instance of the plaintiffs over the objection of the defendant, pertaining to the duty of the latter in respect to the equipment of his engines, and made the subject of an assignment of error, stands closer in logical connection to the one just disposed of than any of the others, it will be now considered. By it the jury were told the defendant was under a duty to equip his engine "with the best approved appliances for preventing the escape of fire." In some instances courts have defined the duty of railroad companies in this connection by the use of the terms "best approved" and "most approved," but these expressions have been qualified by additional terms, such as "in common use," "of practical use," or "which has been approved by actual test." Railroad Co. v. Bailey, 222 Ill. 480, 78 N.E. 833; Mills v. Railroad Co., 116 Ky. 309, 76 S.W. 29; 33 Cyc. 1333. This qualification gives the jury some measure or standard by which to determine whether the equipment is the "best approved" or "most approved." Without it they may determine it in such manner as may seem to them right and just, but in so doing they may adopt an entirely erroneous test. It is well settled, even in those states in which this measure of responsibility is adopted, that a railroad company is not bound to accept and use or experiment with every new invention, or one which is accorded preference in the opinion of mechanics or other experts. The element of test by experience is a necessary one. In those jurisdictions in which the rule above stated obtains this instruction would be apparently bad for omission of the limitation we have mentioned.
Most of the decisions in which this strict rule is observed are governed to some extent by statutes defining the duties of railroad companies in respect to equipment. There may be some instances in which it rests solely upon supposed common-law principles; but the great weight of authority throughout the country requires of railroads no more than reasonable and ordinary care in the equipment of their engines. "As a general rule, it is the duty of a railroad company to use reasonable precautions to provide locomotives so constructed and equipped as to avoid the unnecessary communication of fire to premises adjoining its road." 33 Cyc. 1332. The requirement of such a degree of care plainly does not impose duty to adopt the utmost precautions against injury, nor make the railway company an insurer against damage to property on its right of way or premises adjoining it. Accordingly, courts generally hold railroad companies not absolutely bound to use the safest and best appliances to prevent the escape of sparks. Elliott on Railroads, § 1224; Railway Co. v. Reese, 85 Ala. 497, 5 So. 283, 7 Am.St.Rep. 66; Railway Co. v. Thompson-Hailey Co., 79 Ark. 12, 94 S.W. 707; Clisby v. Railway Co., 78 Miss. 937, 29 So. 913; Flinn v. Railroad Co., 142 N.Y. 11, 36 N.E. 1046; Bottoms v. Railroad Co., 136 N.C. 472, 49 S.E. 348. This rule is in accord with the the general principle applicable to persons using fire upon their own premises. Nothing beyond reasonable care and prudence under the circumstances of the particular case is required. Mahaffey v. Lumber Co., 61 W.Va. 571, 56 S.E. 893, 8 L.R.A. (N. S.) 1263. What amounts to reasonable and ordinary care is not determinable by any arbitrary rule, of course. As the use of fire is attended by varying conditions of duration, weather, and exposure, the exercise of ordinary care includes the adoption of methods and measures of safety, determinable by such conditions. One who uses fire constantly would naturally fall under a higher degree of duty than one who uses it only casually and to a limited extent. But "reasonable care" is all that can be required under any circumstances, and the adoption by a railroad company of those inventions and mechanisms generally used for the purpose of preventing the escape of fire, reasonably well adapted to the purpose and efficient, as shown by the test of experience, is obviously...
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