Smith v. Old Colony and Newport Railroad Company

10 R.I. 22

• Court: Supreme Court of Rhode Island
• Decided: March 6, 1871
• Status: Published

Opinion

DubeE-E J.

We consider it to be settled that a railroad company is only required to use reasonable or ordinary care, to protect property on tbe line of their road from damage by reason of sparks escaping from their locomotives; and that reasonable care is such care as prudent men, skilled in the business, would ordinarily exercise in the circumstances. Of course, reasonable care, as thus defined, is not a stationary degree of care, but a rule which graduates itself to suit the varying circumstances under which the exercise of care is called for, the requirement being always that the care shall be proportionate to the danger. Thus, what would be reasonable care, with the property contiguous to the road covered with snow or saturated with heavy rains, would fall far short of being reasonable care in a season of protracted heat and drought. In the one case, there would probably be need of very little care beyond the furnishing of the locomotives with proper spark-catchers; while in the other the utmost caution and vigilance would amount simply to the degree of care which prudent men, skilled in the business, would ordinarily use in the same circumstances. Whether in any particular case of fire communicated from a locomotive, the care used by the railroad company was, under the circumstances, reasonable care, is a question of fact, to be determined by the jury, the rule as to reasonable care being explained to them by the court.

In the case at bar, we do not think the charge to the jury was such as would properly instruct them, in their duties. The judge who gave the charge directed the jury that, in order to find for the plaintiff, they should be satisfied that the fire resulted from the want of proper care on the part of the defendant corporation; but when he proceeded to define more specifically the kind of care which was to be exacted of the company as “ proper care,” he used language which allowed the jury too little latitude. In fact, we think the language used was such as would naturally have led the jury to suppose that the railroad company was responsible unless the fire was the result of an inevitable accident. At the very least, the jury could hardly have inferred, from the language and illustration employed, that anything less than the utmost care and vigilance could satisfy the requirements of the law. Thus, the jury were told that the question was, whether the burning was an unavoidable accident; and, after the use of other language of very stringent application to the defendant corporation, the judge concluded his instructions upon this point with the following remarks, to wit,: “ The running of an engine is a lawful business, but they must be run with such care as to prevent damages. So it is lawful to use gunpowder, but those who use it must take care that it does no injury to others.” Now it may be that, in point of fact, the utmost care would have been nothing more than reasonable care in the special circumstances of this case; but nevertheless, if this were the fact, we think that the jury should have been left to find that it was so, as a matter of fact, after having been duly instructed in the law as we have above explained it. But under the charge which was given them, they were not left in this respect to the proper exercise of their judgments. We think, therefore, that upon this point the charge was erroneous.

On the trial of this case evidence was allowed, under exception, to pass to the jury to show that fires on the line of the road had originated from sparks escaping from the locomotives of the defendant corporation, both before and subsequently to the occurrence of the fire in question in this action. The counsel for the defendant corporation insists that this testimony is not properly admissible.

We think there are two purposes for which such testimony may be admissible. The fact that other fires have been communicated before, and especially if recently beforq, the occurrence of the fire in question, is a fact which should put the company on their guard and stimulate them to increased watchfulness, and therefore testimony relating to such fire might properly pass to the jury, to enable the jury to judge whether, in view of their previous occurrence, the company was, at the time of the fire in question, in the exercise of reasonable care. For this purpose, however, no testimony should pass to the jury relating to fires subsequent to the fire in question, for obviously no such fire could have put the company on their guard against the fire in question. A second purpose for which such testimony might be admissible is this, namely : to show the possibility of communicating fire by sparks from a locomotive, if any question were made upon that point, and, for this purpose, it would be immaterial whether the testimony related to fires of an earlier or later date than the fire in question. If, however, the possibility were not questioned, and, especialty, if it were admitted that the fire so originated, testimony relating to fires of a later date should be carefully excluded, as being irrelevant, and as having-a tendency to excite prejudice against the company.

The application of these views to the case at bar will be manifest, and need not be more specially indicated.

Another question in the case relates to the sufficiency of the declaration. The declaration, with some variation of phraseology in the different counts, alleges, in effect, that the defendants, while using their locomotive engine and other rolling stock on their road, so carelessly and negligently managed the same that the plaintiff’s cotton mill was set on fire by sparks from said locomotive engine. The point made is, that the injury complained of, if occasioned by careless management, was occasioned by the careless management, not of the engine, but of the fire in the engine. We think, however, that the same meaning is conveyed by the language used as would be conveyed by the language suggested, and that, therefore, the declaration is not insufficient -on any such ground. The management of an engine consists, in part, of the management of the fire which generates the motive force of the engine.

The motion for a new trial presents several' other questions of minor importance, which we do not deem it necessary to specifically consider. We grant the petitioners a new trial.

New trial granted.