Young v. New York, N.H.&H.R. Co.

• Decision Date: 13 January 1931
• Citation: 273 Mass. 567,174 N.E. 318
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: YOUNG v. NEW YORK, N. H. & H. R. CO., and four other cases.

273 Mass. 567

174 N.E. 318

YOUNG

v.NEW YORK, N. H. & H. R. CO., and four other cases.

Supreme Judicial Court of Massachusetts, Worcester.

Jan. 13, 1931.

Appeal from Appellate Division of Second District Court of Southern Worcester; Francis N. Thayer, Judge.

Separate actions by Herbert M. Young, by Frank Farnum, by Frederick J. Aldrich, by Lars Johnson, and by Fernando C. Richardson and others, against the New York, New Haven & Hartford Railroad Company. From an order of the Appellate Division, dismissing a report after findings for plaintiffs, defendant in each case appeals.

Order dismissing report affirmed.

F. P. Brady, of Uxbridge, for appellees.

H. Lawlor, of Boston, for appellants.

FIELD, J.

These are five actions of tort, brought in the district court under G. L. c. 160, § 234, to recover damages for the destruction of ‘growing trees and sprouts' and other property of the plaintiffs, in Uxbridge, alleged to have been caused by fire communicated by the locomotive engines of the defendant corporation. There were findings for the plaintiffs, a report to the appellate division, which was dismissed, and an appeal to this court by the defendant from such dismissal.

The report was dismissed rightly, since it disclosed no error of the trial court.

G. L. c. 160, § 234, provides that a railroad corporation ‘shall be liable in damages to a person whose buildings or other property may be injured by fire communicated by its locomotive engines.’ This liability is imposed even in the absence of negligence or other fault of a railroad corporation, which is made, in effect, an insurer against fire caused by its engines. Wall v. Platt, 169 Mass. 398, 48 N. E. 270;Day v. Boston & Maine Railroad, 225 Mass. 538, 114 N. E. 725.

It is undisputed that the property in question, located on land in Uxbridge east of the defendant's track, was ‘injured by fire,’ but the defendant contends that the evidence did not warrant a finding that the fire was ‘communicated by its locomotive engines.’ The findings of the trial judge on this point were as follows: ‘A view of the locality as well as the evidence shows that the point where the fire is alleged to have been set is at the top of a steep grade and the view shows that just below where the fire is alleged to have been set there is a reverse curve. It is shown that shortly before the fire was discovered trains passed this point both up and down. It is not controverted that the woods were very dry and that there was considerable wind from N. of W. and that the fire was set by some cause on the easterly side of the track. The evidence is contradictory as to where the fire was when it was found by different parties and as to whether the woods were burned over between where they found it and the R. R. but one Boroday who was the first one on the ground states that when he got to the fire it was burning on the side of the R. R. location. His evidence, the fact that the fire was seen soon after trains passed the point where the fire was seen, the grade and curves, confirm to me, the evidence of this witness and as no other agency has been shown to have set any fire, I find that said fire was communicated by a locomotive engine of the defendant corporation.’

The plaintiffs were required to prove by a preponderance of evidence-not beyond a reasonable doubt-that the fire was set by the defendant's engines, that is, to establish that this was the reasonably probable explanation of the cause of the fire (see Highland Foundry Co. v. New York, New Haven & Hartford Railroad, 199 Mass. 403, 405, 406, 85 N. E. 437), but they were not ‘required to exclude all other possibilities as to the cause’ thereof. Navien v. Cohen, 268 Mass. 427, 431, 167 N. E. 666, and cases cited. The judge rightly refused to rule that if there was ‘any reasonable doubt upon all the evidence the finding must be for the defendant.’

The subsidiary findings were warranted by the evidence. It was for the trial judge to determine whether he would accept as true the testimony of the witness Boroday in preference to other testimony. He was not bound to believe the evidence that persons were seen in the woods near the place of the fire, and that brush had been cut nearby. If true, it did not show that any ‘agency,’ other than the defendant's engines, set the fire. It suggested the possibility of an independent cause, but, without more, was not evidence thereof, and the judge was right in refusing to make the ruling which the defendant requested based on the assumption that there was such evidence.

The trial judge was warranted in concluding that the plaintiffs had sustained the burden resting on them of proving that the fire was ‘communicated by * * * [the] locomotive engines' of the defendant corporation, and a ruling to the contrary, requested by the defendant, was refused property. According to the subsidiary findings the fire was seen near the track ‘at the top of a steep grade,’ shortly after engines had passed in each direction, on a dry day when ‘considerable wind’ was blowing from the track toward the place where the fire appeared. These facts go beyond those in General Ins. Co. of America v. Northern Pacific Railway, 280 U. S. 72, 74, 76, 50 S. Ct. 44, 74 L. Ed. 172, relied on by the defendant, and bring these cases within the cases in this commonwealth holding that the evidence therein warranted findings that the fire was set by engines, except that there is no finding that sparks were seen to have been thrown from any engine at about the time the fire started (see Wild v. Boston & Maine Railroad, 171 Mass. 245, 247, 50 N. E. 533;Bowen v. Boston & Albany Railroad, 179 Mass. 524, 526, 61 N. E. 141;Englert v. New York, New Haven & Hartfored Railroad, 260 Mass. 535, 537, 157 N. E. 590), nor that, at other times, sparks ‘frequently’ or ‘occasionally’ had been thrown from the railroad's engines and other fires...