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

38 A. 413, 182 Pa. 538, 41 W.N.C. 144, 1897 Pa. LEXIS 840

• Court: Supreme Court of Pennsylvania
• Decided: October 11, 1897
• Docket: Appeal, No. 61
• Status: Published

Opinion

Opinion by

Mr. Justice McCollum,

The plaintiff was the owner of a farm in Springfield township, Erie county, consisting of about sixty acres of improved land and about eighty acres of timber land. The defendant located and constructed its road across the improved land and from twenty to forty rods from the timber. On October 12, 1893, a fire was set in a field of the farm near the railroad by a spark or sparks from the defendant’s locomotive. The fire rapidly spread over the field and into the timber, destroying a considerable portion of the latter and otherwise damaging the farm. For the damage done to the farm by fire this suit was brought and it resulted, on the trial of it in the court below, in a verdict for the plaintiff. It is now before us on appeal from the judgment entered in it.

While it was not denied on the argument at bar or in the paper-book that the fire was set as above stated, it was strenuously contended that it was not caused or contributed to bjr any act or omission of the defendant. In support of this contention evidence was introduced to show that engine 73, from which the sparks were thrown, was provided with an approved spark arrester, which was in good condition on the day the fire was set. The witnesses who testified to this effect were Lilly, whose . duty it was to inspect the spark arresters in the smoke-stacks of the locomotives, and Shurtz, who on the day of the fire was fireman on 73. Lilly testified that he inspected the spark arrester on 73 on the day of, and the day after, the fire, and found it all right. His testimony, however, was not based on his recollection of the inspection but on the entries in the book in which he noted them, which entries were “73 ditto.” Shurtz testified that he did not examine the spark arrester on 73 on the day of the fire, but that he saw nothing which led him to think it was defective. This was the nature and scope of the testimony presented by the defendant as a sufficient answer to the evidence introduced by the plaintiff to show that the fire was caused by the negligence of the former.

It was shown by the evidence submitted by the plaintiff and bearing on the question of negligence, that the fire was set in his field adjoining the defendant’s right of way, by sparks from engine 73; that the same engine, on the same day, and within a distance of three miles, set eleven other fires on farms adjoining or crossed by the railroad, and that some of these fires were set by sparks thrown from three to four rods beyond the right of way. All of these fires were set about one o’clock in the afternoon. Alvin VanGorder testified that he was about eighty rods from the railroad track when the second freight train passed; that the engine (73) hauling it appeared to be laboring hard, and was pouring out smoke and fire; that he saw sparks flying from it, but could not tell, from where he stood, how large they were. He also testified that very soon after the train went east he saw three fires on lands adjoining the railroad, two on Allen’s land and one on Shear’s land. He was then standing about three quarters of a mile from the west line of the plaintiff’s farm. Loren Whitney testified that he was about a third of a mile from the railroad when the second freight passed, and that he saw black smoke and a blaze issuing from the engine, and soon after it passed he saw four fires on lands adjacent to the road, one of them being on the land of the plaintiff. It is proper to state in this connection that the testimony of the defendant’s engineers clearly supports the view that an engine provided with an approved spark arrester and properly run will not set fires upon lands outside of the right of way, as the evidence we have referred to shows that 73 did. We are clearly satisfied that upon all the evidence in the case the question of the defendant’s negligence was for the jury: Van Steuben v. Central R. R., 178 Pa. 367, and cases cited therein.

It remains to inquire whether the court below erred in its rulings upon offers of evidence or in its instructions to the jury. The first and second assignments relate to the admission of evidence of the fires set by engine 78 on the same day the fire was set on the land of the plaintiff. The question raised by these assignments does not require discussion. It has been considered and passed upon in numerous decisions of this court. The rulings to which the assignments relate are in accord with those decisions. It is sufficient to refer to the following cases for the law on this point: Huyett v. Phila. & Reading R. R. Co., 23 Pa. 373, Phila. & Reading R. R. Co. v. Schultz, 93 Pa. 341, and Henderson v. R. R. Co., 144 Pa. 461. The third assign•^■rnent is without merit, because the objection to the question embraced in it was practically withdrawn by the plaintiff and the defendant was allowed to introduce all the evidence on the subject to which the question referred, that it desired to. There was no evidence in the case of any contributory negligence on the part of the plaintiff, and the court was clearly right in saying so in answer to the defendant’s sixth point. See R. R. Co. v. Hendrickson, 80 Pa. 182, and R. R. Co. v. Schultz, supra.

¥e have carefully examined and considered the charge, and are satisfied that it furnishes no ground for reversing the judgment. The assignments are not sustained.

Judgment affirmed.