American Strawboard Co. v. Chicago & Alton Railroad

75 Ill. App. 420, 1897 Ill. App. LEXIS 761

• Court: Appellate Court of Illinois
• Decided: May 23, 1898
• Status: Published

Opinions

Mr. Presiding Justice Crabtree

delivered the opinion of the Court.

This was an action on the case by plaintiff in error against defendant in error, to recover damages for the destruction by fire, of 3,476 tons of baled straw, and a straw stacker, which straw was stacked in close proximity to a switch track operated by defendant in error at Loekport in said Will county. It is claimed that the fire which consumed this property was ' communicated from one of defendant in error’s passing engines engaged in hauling cars upon said switch track. The defense was that the engine was properly equipped with the best known appliances to prevent the escape of sparks, and was properly handled.

The case was tried by a jury which returned a verdict in favor of defendant in error. A motion for new trial was overruled by the court and judgment rendered against plaintiff in error for costs. To reverse this judgment a writ of error is prosecuted to this court.

The assignments of error challenge the correctness of the court’s rulings upon the admission and rejection of evidence, the giving of instructions on behalf of defendant in error, and in refusing to set aside the verdict and grant a new trial. After a patient and careful consideration of all these questions a majority of the court hold that the objections are not well taken, and that the record is substantially free from error.

As shown by the evidence, the facts of the case, briefly stated, are as follows : The fire complained of occurred on March 25, 1895. At that time, and for several years prior thereto, defendant in error owned and operated various switch tracks in the village of Loekport, which were constructed and laid down under the authority of certain ordinances of said village, and which ran from a point on the main line of defendant in error’s railway to the several industries carried on in said village, such switch tracks constituting what is designated upon the plats put in evidence as a “ Y.”

The “ Y” and the switch tracks in question were located upon and crossed certain lands granted by the general government to the State of Illinois to aid in the construction of the Illinois and Michigan Canal, and which were, in 1848, platted and laid out by the canal trustees into village lots, blocks and streets, which lots have been conveyed by reference to such plat. On this plat appears a street called “ Daviess street,” and one of the switch tracks referred to, according to the “ Whitley Plat ” put in evidence, ran on the west line of this street immediately west of and opposite block 127, for a short distance, and thence diverged northwesterly to the paper mill in one direction and southwesterly to the wire mill in another.

For many years prior to the fire, Morton & Co. had owned and operated a paper mill in Loekport, and on September 13, 1882, they leased the same to the Loekport Paper Company, which, on July 1, 1889, assigned its lease to plaintiff in error with the consent of Morton & Co.

This lease does not appear to cover any part of block 127, on a part of which the straw in question was stacked at the time of the fire, but by a deed put in evidence by defendant in error, it does appear that on June 9, 1891, the canal trustees conveyed to plaintiff in error lots 2, 3, 6 and 7 of said block 127, being the west half of said block, lying immediately east of and abutting upon the east line of said Daviess street. In said deed no reference whatever is made to said street.

The straw which was consumed by the fire consisted of a tier of stacks, ten in number, located partly in Daviess street, and partly on the adjoining lots in block 127, and it appears from the evidence that the same ground had been used for the purpose of stacking straw thereon by Horton & Co. and their successors, including plaintiff in error, for a period of about twenty years. It is claimed that Daviess street at the point where the straw was stacked has been for many years practically abandoned by the public as a traveled street, a new road having been acquired across the Avest half of block 127, as shoAvn by the dotted lines appearing on the Whitley plat.

On the morning of the fire one of defendant in error’s engines was engaged in sAvitching in the yards, in charge of its servants, at a time when there was a high wind bloAving from the Avest, and immediately after the engine had passed over a track thirty feet Avesterly from the nearest straw stack the latter Avas discovered to be on fire, and although all due efforts were made to prevent it, the entire ten stacks, containing 3,476 tons of baled straw Avorth $4.35 per ton, Avere entirely consumed by the fire, and a straw stacker upon the ground was likewise destroyed.

There seems to be no dispute about the fact that the fire Avas communicated by the passing engine, the principal point of contention being as to Avhether the engine AA'as properly equipped Avith the best knoAvn appliances to prevent the escape of fire, and also as to whether or not it was properly handled. And it is insisted by defendant in error, that by stacking such a large amount of highly combustible material in close proximity to the switch tracks, known to be operated daily, plaintiff in error Avas guilty of such contributory negligence as prevents and bars a recovery in this case.

It is clear that under the act of March 29, 1869, proof that property is destroyed by fire communicated from a passing engine, is to be taken as full prim,a facie evidence to charge the railroad company operating the same with negligence. 3 Starr & Curtis (2d Ed.), p. 3294.

To rebut the case made by such proof it is incumbent upon the railroad company to show that the engine was, at the time, equipped with the best known appliances to prevent the escape of fire, was in good repair, and was skillfully and carefully handled. Chicago & A. R. R. Co. v. Quaintance, 58 Ill. 389.

The engine which set the fire complained of was equipped with what is called the “ Diamond Stack ” for the purpose of preventing the escape of fire therefrom. As to this there is no dispute, but it is insisted by plaintiff in error that the Diamond Stack is not the best known appliance now in use as a spark arrester on locomotive engines, and that a better and safer one is what is known as the “ Extension Front.” We do not deem it necessary to go into an extended description of these different appliances nor a discussion of their respective merits. Considerable evidence was taken as to their relative value, experts on both sides giving their opinion as to .the merits of the two systems, and it is unfortunate that these opinions are far from being harmonious, but such is the case. From the whole evidence it seems to be left somewhat doubtful as to which is the better appliance, under all conditions, and it would appear that what is the best mode of preventing the escape of fire from locomotive engines is' still a matter of doubt and experiment, no two experts entirely agreeing upon the subject. One thing, however, appears certain, and that is, no device has ever yet been invented or applied which will, under all circumstances, entirely prevent the escape of fire and sparks from moving engines when drawing a loaded train. In this case the proofs are clear that the engine, and the appliance to prevent the escape of fire, such as it was, was in good repair at the time when it is alleged the fire was communicated to the property destroyed. The jury saw the witnesses and heard them testify; they saw the models and drawings of the respective appliances; and having found against plaintiff in error on this issue we see no sufficient reason for saying they came to a wrong conclusion. It was for the jury to reconcile the conflicting evidence if they could, and if not, then to give credence where they thought it properly belonged. The question submitted was one of fact, peculiarly within the province of the jury to determine.

Upon the question as to whether the engine was carefully and skillfully handled, the affirmative evidence is all one way. Numerous witnesses testify to the competency and carefulness of the engineer and fireman, and those who saw the engine at work at the time the fire was set, say it was as carefully handled as it ever was. True, it appears that at the time the engine passed the straw stacks a high wind was blowing from the west and from the engine toward the straw, and that the engineer was compelled to use considerable steam to draw out his load, but he testifies he only used such steam as was necessary to do the work, and while it is strongly urged that under the circumstances, and because of the high wind, greater care was required than would have been necessary on a still day, we can not say the evidence shows an improper or careless handling of the engine. It may be it would have been less dangerous to have passed and repassed these straw stacks several different times, by dividing the train and hauling out the cars two or three at a time, than it was to pass by once in hauling the whole train, but it is not clearly apparent to us that such would have been the fact. The claim that the engine was improperly handled, we think, rests upon inference and not upon evidence, and we are not prepared to say the finding of the jury was wrong upon this question.

While it is assigned for error that the court admitted improper evidence on the part of defendant, and refused proper evidence offered by the plaintiff, yet as no point is made on these assignments of error in the argument of counsel ■ for plaintiff in error, the objections must be considered as waived, and need not be further discussed.

At the close of all the evidence in the case, plaintiff in error asked the court to instruct the jury to find a verdict in its favor, which the court refused to do, and this is assigned for error. We think the instruction was properly refused. In view of the questions of fact involved, and the contradictory nature of the evidence in relation thereto, it would have been clearly improper for the court to have given the instructions asked. It was right and proper that the questions of fact should be submitted to the jury as was done.

Complaint is made that the court erred in refusing to give instruction numbered five, asked by plaintiff in error. The purport of this instruction was that possession of real estate was prima facie evidence of ownership, and if the jury believed from the evidence that the ground where the straw stacks stood at the time of the fire had been in the actual and exclusive possession of the plaintiff for some years prior thereto, and that during all that time the plaintiff exercised acts of ownership over and upon the same, then such possession was prim,a facie evidence of ownership in the plaintiff of the property on which the straw was stacked at the time of the fire.

We think there was no error in refusing the instruction. As we have seen, a large part of the straw-in question was stacked in and upon what appears on the plat as Daviess street. The question of ownership in that street was not properly involved in the case, and to give this instruction to the jury could only have been misleading, in submitting an issue not before them.

While the assignments of error challenge the action of the court in giving a number of instructions at the instance of defendant below, the argument only complains of and discusses two, being the sixteenth and seventeenth. We do not think the sixteenth instruction is fairly open to the criticism placed upon it by plaintiff in error. It certainly does not in terms pretend to tell the jury that any different appliance, or one more unsafe, may be used upon a switch engine than one engaged in any other use to which engines may be put in conducting railroad business, although this is the construction placed upon it by counsel for plaintiff in error. Nor do we see that the mind of the ordinary juror would naturally have understood it as intending so to inform them. After a careful consideration and anatysis of the instruction, we are of the opinion there was no error in giving it.

Instruction No. 17 complained of, is as follows:

“17. The jury are further instructed that, in this action, the burden of proof is upon the plaintiff to show, not only that the defendant was guilty of negligence, but that it, the plaintiff itself, was not guilty of negligence or carelessness.”

We think the question of contributory negligence was fairly involved in the case and that there was no error in giving this instruction. In four of the five counts of its declaration, plaintiff in error averred due care on its part to prevent the destruction of its property by fire, and while under the statute above referred to, a party is not to be charged with negligence because he uses his property in the same manner in which he would have had the right to use it had no railroad been there, yet we think it was not intended by this act of the legislature to absolve the owner of property from all care whatever, and confer upon him the right to make such extraordinary use of his land adjoining a railway, as that he might, regardless of danger, pile up vast quantities of highly combustible material, liable at any moment to be set on fire by a passing engine and he himself take no risk. One might desire for purposes of his own, to erect and maintain a powder house upon his land, for the storing of gunpowder, and if he violated no police regulation of the State, he might have a perfect right to make such use of his property, but no one would contend it was not an act of culpable negligence to locate such a building in the immediate vicinity of a railroad track constantly traversed by passing engines, and it would be unreasonable to hold the railroad company responsible as an insurer of the safety of such a structure.

Our attention has not been called to any decision of our Supreme Court on this precise question since the passage of the act of 1869, nor do we know of any. The cases of Toledo, W. & W. Ry. Co. v. Larmon, 67 Ill. 68, and Toledo W. & W. Ry. Co. v. Maxfield, 72 Ill. 95, have been cited by counsel for defendant in error in support of his contention that plaintiff in error is chargeable with contributory negligence in this case. But there is nothing in either of those cases to show when the .fire complained of occurred, and hence we can not say they are of controlling force in the case at bar. We regard the act of 1869 as being remedial in its nature, and intended to relieve the owner of land abutting upon a railroad from the burden of keeping his property free and clear of combustible matter in its ordinary use. On the generality of farms through or near which a railroad passes, it is a natural and common thing for dead grass, dry weeds, stubble or straw to accumulate and become liable to ignition from passing engines, and it would be burdensome to require the owner to clean up these accumulations, at the peril of suffering the loss on account of his own contributory negligence, in case his property was destroyed by fire communicated from a passing engine. But this is a very different thing from voluntarily piling or stacking an immense quantity of highly combustible matter in immediate proximity to a railroad track, as was done in this case. The evidence shows the stacks to have been so near one of the tracks, that the engineer could pull straws therefrom when leaning out of his cab window, and they were only thirty feet from the track upon which the engine was moving at the time the fire is supposed to have been communicated. That plaintiff in error was fully aware of the danger and the risks incurred by placing its stacks so near the railroad tracks is evidenced by the fact that it was equipped with hose, pumps and other facilities for extinguishing fires, and kept a watchman constantly in charge of the straw stacks, with buckets filled with water ready for instant use.

Upon a full consideration of this question we are disposed to hold that the question of contributory negligence in this case was one proper to be submitted to the jury and that the seventeenth instruction was properly given.

This disposes of all the material questions discussed by counsel in argument, and finding no error in the record the judgment must be affirmed.

Judgment affirmed.