Woodward v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 25 April 1906
• Docket Number: 2,307.
• Citation: 145 F. 577
• Parties: WOODWARD et al. v. CHICAGO, M. & ST. P. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

145 F. 577

WOODWARD et al. v. CHICAGO, M. & ST. P. RY. CO.

No. 2,307.

United States Court of Appeals, Eighth Circuit.

April 25, 1906

P. J McLaughlin (F. W. Gail and William D. Mitchell, on the brief), for plaintiffs in error.

F. W Root, for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

SANBORN Circuit Judge.

This is an action against the railway company for damages for alleged negligence in the operation of one of its locomotives whereby the farm buildings of the plaintiff Woodward were burned. The main line of the defendant's railroad between Minneapolis and Chicago ran within 150 feet of Woodward's buildings. Between the railroad and the buildings there was a traveled highway. On the afternoon of May 1, 1900, after an engine of the defendant drawing a regular passenger train of eight cars had passed southeasterly along the railroad, a fire, which subsequently consumed the buildings, was discovered in some combustible material 106 feet northeasterly from the railroad. It was a dry time, and a strong wind was blowing across the track from the southwest. As the engine passed at the usual speed of about 35 miles an hour, sparks and cinders flew from its smokestack, and some of them were blown into an open window of one of the cars and were probably of the size of a navy bean. When the plaintiffs had established these facts they rested their case, and the defendant introduced evidence to the effect that there were no defects in its locomotive, and that there was no negligence in its operation which could have caused the fire. The court then charged the jury to return a verdict for the defendant, and this instruction is the first alleged error, which is specified.

It is the duty of the trial court to direct a verdict at the close of the evidence in two classes of cases: (1) That class in which the evidence is undisputed; and (2) that class in which the evidence is conflicting but is of so conclusive a character that the court in the exercise of a sound judicial discretion would set aside a verdict in opposition to it. And, where the trial court has directed a verdict upon the latter ground, the appellate court may not lawfully reverse the judgment founded upon it, unless upon a consideration of the evidence it is convinced that it was not of such a conclusive character that the court below in the exercise of a sound judicial discretion should not have sustained a verdict in the opposite direction. Patton v. Tex. & Pac Ry. Co., 179 U.S. 658, 660, 21 Sup.Ct. 275, 45 L.Ed 361; Randall v. Baltimore & Ohio R. Co., 109 U.S. 478, 481, 482, 3 S.Ct. 322, 27 L.Ed. 1003; Marshall v. Hubbard, 117 U.S. 415, 417, 419, 6 Sup.Ct. 806, 29 L.Ed. 919; Treat Mfg. Co. v. Standard Steel & Iron Co., 157 U.S. 674, 15 Sup.Ct. 718, 39 L.Ed. 853; Riley v. Louisville & N.R. Co., 66 C.C.A. 598, 133 F. 904; Haggerty v. Chicago, Milwaukee & St. Paul Ry. Co. (C.C.A.; decided at the September, 1905, term), 141 F. 966; Waters-Pierce Oil Company v. Van Elderen (C.C.A.) 137 F. 557, 569, 571; Chapman v. Yellow Poplar Lumber Co., 32 C.C.A. 402, 404, 89 F. 903, 905; New York Central, etc., R. Co. v. Difendaffer, 62 C.C.A. 1, 3, 125 F. 893, 895; Shoup v. Marks, 62 C.C.A. 540, 545, 128 F. 32, 37.

The court below directed the verdict on this ground, and the question is: Should that court in the exercise of a sound judicial discretion have sustained a verdict upon the evidence in this case to the effect that the defendant failed to exercise ordinary care to avoid setting a fire to Woodward's property by the operation of its railroad? For the gravamen of this action is not the setting of the fire, but the negligence of the defendant whereby the fire was kindled. The railroad company had the same right to operate its railroad by the use of engines, cars, fire, and steam near the premises of Woodward that the latter had to carry on his farm by the use of horses, men, machinery, steam, and electric power in proximity to the railroad. The limit of the duty of each was to exercise ordinary care to prevent injury to the property of the other by the use of his own. Neither was liable to the other for injuries which resulted from the use of his own property, notwithstanding his exercise of reasonable care to prevent them.

There was undisputed evidence that the use of the most approved devices and machinery and the reasonably careful operation of locomotives will retain only about 75 per cent. of the sparks necessarily manufactured in their operation, while about 25 per cent. thereof will be unavoidedly thrown forth from the smokestack upon the air. If the property of Woodward was injured by one of these sparks whose escape ordinary care could not have prevented, the company was not liable for the damage caused thereby, because that damage was not the result of any negligence on its part, and it owed him no duty to avoid damages which reasonable care could not prevent.

There was evidence in this case from which a jury might have inferred that the fire was set by a spark thrown from the smokestack of the defendant's locomotive. The specific question, therefore, which the court was called upon to determine, was whether or not the evidence was so conclusive that this spark was not one of the 75 per cent. whose escape might have been prevented by ordinary care that a verdict to the contrary could not have been lawfully sustained. The statute of Minnesota did not relieve the court from the determination of this question. It provides that:

'All railroad companies or corporations operating or running cars or steam engines over roads in this state shall be liable to any party aggrieved for all damage caused by fire being scattered or thrown from said cars or engines, without the owner or owners of the property so damaged being required to show defect in their engines or negligence on the part of their employes; but the fact of such fire being so scattered or thrown shall be construed by all courts having jurisdiction as prima facie evidence of such negligence or defect. ' Gen. St. Minn. 1894, Sec. 2700.

Statutes of the same nature have been adopted in the adjoining states of North Dakota and South Dakota. These statutes were passed because it was so difficult for claimants of damages caused by fires set by railroad companies to establish in the first instance the facts that their locomotives were defective, or that they were negligent in their operation. The purpose of the legislators in enacting these laws was simply to change the burden of proof so that the defendants might be required to produce the witnesses at their command who were familiary with the facts on which the evidence of negligence depends. The practical and legal effect of these statutes corresponds with the reason for their existence. It is to raise a presumption from the scattering of coals or sparks of fire or the setting of a fire by a locomotive that there was either a defect therein, which might have been avoided by the exercise of reasonable care, or negligence in its operation. This presumption, however, is not a conclusion of law. It is nothing but an artificial, rebuttable presumption of fact whose sole office is to change the burden of proof. When that result has been attained, the presumption becomes functus officio. It may not be used after the evidence of the facts has been adduced to raise an issue for the jury which the evidence itself does not present. Hence, in the first instance, it is always a question of fact for the court at the close of the evidence whether or not the presumption of negligence arising from these statutes has been overcome by the evidence of the care exercised by the defendant. If the proper employes of the railway company have testified to the effect that there were no defects in the locomotive, or that reasonable care had been used to avoid them, and that the engine was operated with ordinary care and skill, and the evidence at the close of the trial is so conclusive that an opposite finding is not sustainable, the statutory presumption has been overcome as a matter of law, and it is the duty of the court to instruct the jury in a fire case from these states, as in other cases, to return a verdict for the rail4ay company. Rosen v. Chicago G. W. Ry. Co., 27 C.C.A. 534, 536, 83 F. 300, 302; Karsen v. Railroad Co., 29 Minn. 12, 14, 15, 11 N.W. 122; Daly v. Railway Co., 43 Minn. 319, 45 N.W. 611; Smith v. Railroad Co., 3 N.D. 17, 33, 53 N.W. 173; McTavish v. Great Northern Ry. Co. (N.D.) 79 N.W. 443, 446; Spaulding v. Railroad Co., 30 Wis. 110, 123, 11 Am.Rep. 550; Id., 30 Wis. 582; Huber v. Railway Co., 6 Dak. 392, 43 N.W. 819; Koontz v. Navigation Co. (Or.) 23 P. 820; Railroad Co. v. Talbot, 78 Ky. 621; Railroad Co. v. Packwood, 7 Am.& Eng.Ry.Cas. 584; Louisville & N.R. Co. v. Reese, 85 Ala. 497, 5 So. 283, 7 Am.St.Rep. 66.

The engineer and fireman who operated the locomotive, and other witnesses who dealt with it before and after the fire testified in detail to facts...