Summary
In Ice Co. v. R. R., 126 N.C. 797, there was no evidence that the engine was defective nor that the right of way was foul.
Summary of this case from Williams v. R. ROpinion
(Decided 5 June, 1900.)
Damage by Fire — Origin of Fire — Sparks From Engines — Evidence.
Evidence of fires at various times and at other places, caused by sparks from other engines both before and after 29 August, the day of the fire, is incompetent, as not tending to prove the condition of engine No. 228 (the engine in question), nor to throw any light on the question directly before the jury, and was calculated to divert and mislead the minds of the jury to an unsafe verdict. The principle which governs in such cases is stated in Grant v. R. R., 108 N.C. 462, 470.
ACTION to recover damages from fire communicated, as alleged, by sparks from a locomotive engine of defendant, and through negligence, partially destroying the ice factory of plaintiff, tried before Brown, J., at April Term, 1899, of WAKE.
Ernest Haywood, F. H. Busbee, Simmons, Pou Ward, and Armistead Jones for plaintiff.
MacRae Day, J. D. Shaw, J. B. Batchelor, W. H. Neal, C. F. MacRae, and R. T. Gray for defendant.
Verdict and judgment for plaintiff. Defendant appealed.
(798) FAIRCLOTH, C. J., writes the opinion of the Court.
DOUGLAS, J., writes dissenting opinion.
This is an action for damages to plaintiff's property alleged to have been caused by defendant's negligence. The trial resulted in a verdict and judgment in favor of the plaintiff, and an appeal by defendant. For the purposes of this opinion the facts are as follows: The plaintiff's ice factory was located on the defendant's right of way, two or three hundred yards west of Union Depot in the city of Raleigh. On 29 August, 1893, between 8 and 9 o'clock, about 8:30 the plaintiff's ice factory was discovered to be on fire and was partially consumed; that about twenty minutes before the fire the defendant's engine, No. 228, called the Atlanta Special, pulled out from Union Station going (799) west and passed the plaintiff's factory, emitting sparks, and soon thereafter the factory was discovered to be burning. The plaintiff alleged and proved the passing of said engine and fire at the time above stated, and there is no allegation or proof in the record that any other engine of the defendant passed by said place recently before or soon after the time the fire occurred. Carefully reading the record shows clearly that the contention at the trial centered on the question whether the damage was caused by said engine, No. 228.
There was much evidence and many exceptions to the admission and exclusion of evidence, and to instructions given to the jury by the court.
During the trial, the plaintiff offered and was allowed, over the defendant's objection, to introduce the evidence of several witnesses to show that at several times, both before and after this fire and at other places on defendant's line, other engines of defendant had, by sparks emitted, set fire to and burned the property of other persons — one witness testifying that it was a common occurrence for these trains to set the fields on fire, but he did not know whether it was done by the defendant's trains, it being proved that at those points another railroad runs parallel with and in a few feet of the defendant's track. This testimony was heard by the jury without any evidence of the condition of these engines, and without any explanation of the attending circumstances. Another witness said that in 1894 the remains of said factory building caught on fire directly after the defendant's freight train passed, and constantly before and since, and that the old field caught on fire in March, 1894, two or three times near the bridge.
This evidence of fires at various times and at other places, caused by sparks from other engines, both before and after 29 August, we must hold to be incompetent, as it does not tend to prove the condition of engine No. 228, nor to throw any light on the questions (800) directly before the jury. It was well calculated to divert the minds of the jury and lead them to an unsafe verdict.
The principle which governs in such cases was brought to the attention of the Court in February, 1891, in Grant v. R. R., 108 N.C. 462, 470; the plaintiff was injured by derailment of defendant's train, and on the trial he offered to show that a similar accident occurred soon before and afterwards at other places, to a train run by the same engineer and conductor. The Court said: "The condition of the defendant's railroad track at places other than that at which the accident in question happened, could not prove or disprove the condition of the track at the latter place," and that such evidence would certainly tend to mislead the jury.
In October, 1891, the same question was before the Court in Pennsylvania, and is on "all fours" with the case before us. It was Henderson v. R. R., 144 Pa. St., 461. After able and elaborate arguments the Court held: (1) "In an action for a loss by fire, caused by sparks from a locomotive engine of a railroad company, the burden is on the plaintiff to prove that the fire was communicated by some engine of the defendant company, and also to prove negligence in the construction or management of the engine; such facts, however, may be established by circumstantial evidence. (2) When the fire is shown to have been caused, or, in the nature of the case, could only have been caused by sparks from an engine which is known and identified, the evidence should be confined to the condition, management and practical operation of that engine; and testimony tending to prove defects in other engines of the company is irrelevant and inadmissible. (3) If, however, the offending engine is not clearly or satisfactorily identified, it is competent for the plaintiff to prove, in support of the allegation that the fire was caused by the defendant's negligence, that the defendant's (801) locomotives generally, or many of them, at or about the time of the occurrence, threw sparks of unusual size, causing numerous fires on that part of its road. (4) This class of testimony is exceptional in character at the best, and is admissible only because direct evidence is impracticable; the examination, therefore, will be confined to the negligent operation of the engines at and about the time of the fire, with such reasonable latitude, before and after the occurrence, as is sufficient to make such proofs practicable."
We have quoted freely from this case because it covers several practical points of this subject, and because it seems unnecessary to cite other cases of a similar bearing. The principle is not only supported by authority, but it appears to our minds to be correct, and a just rule to be applied in jury trials.
There are some decisions modifying this rule and perhaps seem inconsistent with it; but the reasoning in some of them is not satisfactory, and we do not cite or discuss them.
What we have said shows error and requires a new trial. At the next trial it is probable that many of the other exceptions will be eliminated, and we will not therefore discuss them at present.
Venire de novo.
Cited: Cheek v. Lumber Co., 134 N.C. 228; Johnson v. R. R., 140 N.C. 583; Williams v. R. R., ibid., 626; Knott v. R. R., 142 N.C. 245; Kerner v. R. R., 170 N.C. 96.
(803)