Johnston v. Director General of Railroads

109 A. 581, 30 Del. 565, 7 Boyce 565, 1920 Del. LEXIS 46

• Court: Superior Court of Delaware
• Decided: March 23, 1920
• Docket: Summons Case, No. 18
• Status: Published

Opinion

Conrad, J.,

charging the jury:

The court declines to instruct the jury to find for defendant.

In this case the plaintiffs, Tilghman Johnston and Walter Blackson, trustees, seek to recover from the Director General of Railroads, the defendant, the sum of $3,979.30, with interest from October 9, 1918 (said to total $4,322.18), as damages for the loss alleged to have been sustained by them through the destruction of a bam and other buildings and their contents, located in Christiana hundred, in this county, on the evening of October 9, 1918, it being alleged the fire resulted from the negligence of defendant. The acts of negligence relied on are:

(1) “From the negligent, careless and unskillful operating of a locomotive whereby fire and sparks were emitted from said locomotive and were communicated to the barn and other buildings of the plaintiffs.”

(2) “That the defendant failed to provide the locomotive operated by it with appliances to prevent the escape of fire and sparks from the smokestack thereof, whereby fire was communicated to the barn and other buildings as aforesaid.”

[1] Negligence is the gist of the action. Unless the evidence establishes to your satisfaction negligence on the part of defendant, the plaintiffs cannot recover. Negligence is never presumed, and the burden of proving the negligence alleged, is upon the plaintiff.

[2] Negligence is the failure to observe for the protection of others, that care, prudence and vigilance which the circumstances require, or as has been said, the want of such care as a reasonably prudent and careful person would exercise under ordinary circumstances.

[3] In a case like this the defendant company is only liable for want of due care, skill or diligence in the transaction of its lawful business, including the use of its engines, to prevent accidents.

If the defendant in the present case had adopted the usual and proper precautions in employing competent engineers and firemen to manage and operate its engines, and the engineers and firemen used reasonable care and diligence in the management and operation of them, and its locomotives were supplied with such spark arresters, as were in general use for preventing the escape of sparks, then the defendant did all that the law required, but it was bound to exercise its rights with due care and caution in respect to the rights and property of others.

Before plaintiffs can recover they must establish to your satisfaction, that the barn and outbuildings together with their contents were destroyed by sparks emitted from defendant’s locomotive, and that the firing and destruction of the property resulted from the carelessness and negligence of the defendant, or its servants or agents.

[4] Whether the alleged firing of plaintiff’s property resulted from the alleged acts of negligence of the defendant company, or any of them, may be shown by either direct or circumstantial evidence.

Proof by circumstantial evidence is the proof of one fact by proving the existence of certain other facts. The fact to be proved by circumstantial evidence must to the satisfaction of the jury, be reasonably, naturally and probably inferred, from the existence of other facts proved.

Negligence, when relied upon, as the basis of the action is a question of fact for the determination of the jury according to the preponderance or weight of the evidence.

If you find for the plaintiffs, you should assess as their damages the value of the buildings destroyed, and the value of the contents thereof with interest from the date of the fire.

If on the other hand you should find for the defendant your verdict should be simply for defendant.

Your verdict should be for that party in whose favor the evidence preponderates, taking into consideration all the facts and circumstances and applying the same to the law which the court has announced to you.

Verdict for plaintiffs.