New York, Chicago & St. Louis Railroad v. Baltz

36 N.E. 414, 141 Ind. 661, 1894 Ind. LEXIS 367

• Court: Indiana Supreme Court
• Decided: February 13, 1894
• Docket: No. 16,578
• Status: Published

Opinions

Hackney, J.

This was an action by the appellee, against the appellant, to recover for the loss of a saw mill and certain timber and lumber, and for injuries to the machinery of said mill, alleged to have been sustained by fire communicated to said mill by the careless and negligent emission of sparks from'appellant’s locomotive, through insufficient spark arresters.

The complaint was not drawn with care in its allegations as to the insufficiency of the spark arrester, nor in the negative allegation of freedom from contributory negligence; but we pass the questions suggested and proceed to consider what we regard as a vital question.

The following answers to interrogatories, with others, were returned by the jury with their general verdict:

“1. Was not the engine of defendant, which is alleged to have fired plaintiffs’ property, described in the complaint, known as number 163? Ans. Yes.”

“3. Was not such engine provided with a spark arrester known as the extension front? Ans. Yes.”

“10. Was not the spark arrester on the engine of defendant, which is claimed to have started the fire, of the most approved style and the best known or equal to the best for the prevention of the escape of fire? Ans. Yes.”

”12. Was not the spark arrester in the engine claimed to have fired plaintiff’s property in sufficient and proper repair? Ans. No.”

”13. If you say ‘no’ to interrogatory number 12 state specifically wherein the spark arrester was out of repair? Ans. First, because it emitted too many sparks. Second, because the sparks emitted were too large, there being a break in the netting.”

”14. Was not the engine claimed to have fired plaintiff’s property, while passing plaintiff’s property and going through Sidney, properly operated by a skilled engineer? Ans. Yes.”

We have carefully read the evidence and find that the answer of the jury to interrogatory numbered 13 is not only not sustained by any evidence, but it is opposed to the uncontroverted evidence of several witnesses who testified to the unbroken condition of the spark arrester. This condition was shown, not only from actual examinations of the spark arrester, but from observations of experts, that a break in the netting of a spark arrester causes the sparks to concentrate at the point of such break and to pass out only at such break. No such action of the sparks emitted from engine numbered 163 was shown by any witness nor by any circumstance while the undisputed evidence of the engineer of that engine was that the sparks were not so concentrated. The evidence, without conflict, supports the answers of the jury to interrogatories numbered 1, 3, 10 and 14.

In this condition of the record we have a case where the locomotive claimed to have communicated the fire was equipped with the most approved and best known spark arrester, in good repair, and properly operated by a skilled engineer. If the fire which destroyed the appellee’s mill was communicated by sparks emitted from that engine, does it follow that the appellant is liable for the loss? Most certainly not in the absence of negligence on the part of the railway company. The existence of negligence can not be inferred from the mere fact that a fire follows soon after the passage of a train. Indianapolis, etc., R. W. Co. v. Paramore, 31 Ind. 143; Pittsburgh, etc., R. W. Co. v. Hixon, 110 Ind. 225; Chicago, etc., R. W. Co. v. Ostrander, 116 Ind. 259; Ruffner v. Cincinnati, etc., R. R. Co., 34 Ohio St. 96.

In the last of these cases it was said: “The emission of sparks from such locomotives results from the mere use and is as natural as it is common; therefore, it can not be presumed, either as a matter of law or matter of fact, that the escape of sparks is caused by carelessness or negligence in the use. * * * It is not enough to show that the injury was caused by sparks escaping from a passing engine, without more. A party is not answerable in damages for the reasonable exercise of a right. A liability arises only when it is shown that the right was exercised negligently, unskillfully or maliciously.”

In Indianapolis, etc., R. W. Co. v. Paramore, supra, it was held that affirmative evidence of negligence was necessary, even where it appeared that the sparks caused the loss. It was there further held that ‘ ‘Every proprietor adjoining a railroad may lawfully deposit his property or goods or erect valuable buildings on his own premises, in close proximity to such road; but in doing so he takes upon himself the risk of danger of fire being communicated thereto without the fault of the railroad company or its servants.”

The rule adopted in that case was expressly affirmed in the cases of Pittsburgh, etc., R. W. Co. v. Hixon, supra, and. Chicago, etc., R. W. Co. v. Ostrander, supra, and in the recent case of Louisville, etc., R. W. Co. v. Schmidt, 134 Ind. , the same principle was enforced with reference to the right of a railway company to use safety valves upon its locomotive, though its use should cause injury to one passing near the railway. Negligence in the use of proper machinery or in failing to use proper machinery may be the basis of an action for damages for burning property adjacent to a railway, but such burning, in the absence of the essential element of negligence, furnishes no ground of relief.

Filed Feb 13, 1894.

The hazards of fire are no greater from the ordinary use of the railway locomotives than from the saw mill, and when each has opportunity to cause the loss, there is no occasion for departing from the established rules to cast the responsibility upon either. The only shadow of justification for the verdict in this case is upon the claim that certain witnesses, who saw locomotive numbered 163 pass through Sidney the night of the fire, saw her emitting sparks, described as varying in size from that of a’grain of wheat to that of a grain of corn. Such sparks are not shown by the evidence to have been of such extraordinary size as not to have been emitted through a regulation mesh or screen opening. In the absence of such evidence, and considering the clear and positive evidence that the screen was in proper repair, there was no conflict in the evidence, and the general verdict in favor of the appellee was without support.

We conclude, therefore, that the circuit court erred in overruling appellant’s motion for a new trial, and its judgment is for that error reversed, with instructions to grant a new trial.