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that purpose, provided they are such as under the circumstances it is reasonable to require such company to adopt. If, however, the dangers to be avoided are insignificant or not very likely to occur, and the remedy suggested very costly and troublesome, or such as interferes materially with the efficient working of the engine, it is for the jury to say whether the company could reasonably be expected to adopt it."

1. Fremantler v. London, etc., Ry.Co., cumstances to prevent the escape of fire 2 Fost & Fin. 340; 10 C. B. (N. S..) 89. from locomotives in such quantities as to London V. Railway Co., 10 C. B. occasion injury; but it has also been fully (N. S.) 89; Hoyt vi Jeffers, 30 demonstrated that where engines are Mich. 181; Brighthope R. Co. v. Rogers, properly constructed and have the proper 76 Va. 443; s. C., 8 Am. & Eng. R. R. appliances for preventing the escape of Cas. 710; Baltimore, etc., R. Co. v. fire, and are managed with care, they Woodruff

, 4 Md. 242; Fitch v. Pacific R. rarely occasion damage by setting out Co., 45 Mo. 322; Kansas, etc. R. Co. v. fire. Bults, 7 Kan. 308; Frankford, etc., Turn- In Texas, etc., R. Co. v. Levi, 59 Tex. pike Co. v. Phila, etc., R. Co., 54 674; s. C., 13 Am. & Eng. R. R. Cas. 464, Pa. St. 345; Phila., etc., R. Co., the court say:“The evidence tends to show Hendrickson, 80 Pa. St. 182; Erie R. that, by the use of the most approved Co. v. Decker, 78 Pa. St. 293; Burke v. spark-arresters, it is impracticable to preLouisville, etc.; R. Co., 7 Heisk. (Tenn.) vent entirely the escape of sparks from lo452; Steinweg v. Erie R. Co., 43 N. Y. comotives, unless the draught is so closed 123: Bedell v. Long Island R. Co., 44 by the spark-arrester as to prevent the N. Y. 367; Webb v. Rome, etc., R. Co., generation of steam. If such be the case, a 49 N. Y. 420; Crist v. Erie R. Co., 58 railway company is authorized to opN. Y. 638; Jefferis v Railroad Co., 3 erate its engines with such protection Houst. (Del.) 447; Smith v. Old Colony against injury to others by fire as can R. Co., 10 R. I. 22; Illinois Cent. R. be given by the use of a high degree Co. v. McClelland, 42 Ill. 355; Bass v. of

in the selection and Chicago, etc., R. Co., 28 Ill., 9; Toledo of such appliances are approved etc., R. Co., V. Larmon, 67 Il. 68; by prudent and skilful persons, generSpaulding v. Chicago, etc., R. Co., 30 ally engaged in such business, and are Wis. 110; Toledo, etc., R. Co. v. Waud, found to be best adapted to prevent the 48 Ind. 476; Gagg v. Vetter, 41 Ind. escape of fire by which others may be in 223; Pittsburgh, etc. ,R. Co. v. Nelson, jured, even though as thus operated there 51 Ind. 150; Kenney v. Hannibal R.Co., may be danger of injury to others from 63 Mo. 98; Jackson v. Chicago, etc., R. fire escaping from locomotives. The Co., 31 Iowa, 176; Longabough v. Vir business being authorized by law, ginia City, etc., R. Co., 9 Nev. 271. no liability can be incurred from its ex

It is indeed sometimes said that these ercise, unless there be a want of care in contrivances

be the most per: its prosecution, even though it be at. fect possible, but the authorities to this tended with some risk of injury to others.” effect are scanty and not thoroughly re- See also Brown 2. Atlanta, etc., R. Co., liable. Indiana R. Co. v. Paramore, 31 19 S. Car. 39; s. C., 13 Am. & Eng. R. R. Ind. 143; St. Louis, etc., R. Co. v. Gil. Cas. 479. ham, 39 Ill. 455; Ill. Cent. R. Co. v. If a railroad company use upon its enMcClelland, 42 11. 355; Chicago, etc., R. gine a spark-arrester of an approved Co. v. Quaintance, 58 Ill. 389; Ill. Cent. pattern in general use, and which, upon R. Co. z'. Shanefelt, 8 Ill. 497.

a careful inspection by a skilled meIn Burlington, etc., R. Co. v. Westover, chanic, appeared to be in good condition, 4 Neb. 268, it is said: “As to what are such company will not be responsible reasonable precautions against the escape for damage done by a fire occasioned by of fire, the court almost without excep- sparks escaping through such spark-artion hold that where engines are properly rester. Hoff v. West Jersey R. Co., 45 constructed and have all the appliances N. J. L. 201; S. C., 13 Am. & Eng. R. R. in general use for preventing the escape Cas. 476. In a number of cases, howof fire, and there is no negligence in their ever, evidence has been admitted to show management, the company will not be that by the proper contrivances fire may liable, as experience has shown that it is be effectually prevented from escaping, impossible at all times and under all cir- Anderson v. Cape Fear Steamboat Co..





IV. Negligence in Management of Engines.—The law requires that the locomotives of a railway company shall not only have the best and most approved appliances to prevent fire from escaping, but in case any engine shall set out fire and destroy the property of a third person, it will devolve on the company to prove that the engine was properly constructed and operated with due care.1 64 N. Car. 399; Steinweg v. Erie R. Co., St. Louis, etc., R. Co. v. Gilham, 39 Ill. 43 N. Y. 123; Case v. North Cent. R. 445; Anderson v. Cape Fear Steamboat Co., 54 Barb. (N. Y.) 644; Dimmock v. Co., 64 N. Car. 399; F. & B. Turnpike North Stratfordshire R. Co., 4 F. & F. Co. v. Phila., etc., R. Co., 54 Pa. St. 545. 738; Longabough v.Virginia City, etc., R. But if a particular safeguard has been Co., 9 Nev, 271. And some judges have tested and found to meet the purpose, the not hesitated to express themselves of a company must use it. Toledo, etc., R. like opinion. Piggott v. Eastern Coun- Co. i'. Corn, 71 Ill. 493. See Steinweg ties R. Co., 3 M. G. & S. 230; Chicago, v. Erie R. Co., 43 N. Y. 123; Pittsburgh, etc., R. Co. v. Quaintance, 58 III. 389. etc., R. Co. 1. Nelson, 51 Ind. 150;

In Small v. Chicago, etc., R. Co., 50 Freemantle v. London & N. W. Ry. Co., Iowa 338, s. C., 55 Iowa, 582, Beck, J., 10 C. B. (N. S.) 89: Dimmock v. North says: It may be said, as fire must be Staffordshire Ry. Co., 4 F. & F. 1058; used in running an engine, the railroad Freemantle v. N. W. Ry. Co., 2 F. & F. company cannot dispense with it, and 340. If a spark-arrester will prevent the whenever used it is liable to escape fire, it is negligence per se not to use it. through accident, and cannot be certainly Anderson v. Cape Fear Steamboat Co., controlled. But this conclusion we can- 64 N. Car. 399; Bedell v. Long Island not admit. We are of the opinion that R. Co., 44 N. Y. 367. But in contrivances may be applied to engines other cases this is considered a question that would prove just as effectual in pre- for the jury. Lackawana, etc., R. Co. v. venting the escape of fire as a fence is in Dook, 52 Pa. St. 379;. Kellogg v. Milpreventing cattle going upon a railroad waukee, etc., R. Co., I Cent. L. Jour. track. Whether such contrivances are in 278; Algier v. Steamer Maria, 14 Cal. 167; use we know not, and it is not important Freemantle v. London & Northwestern to inquire; that they may be applied can. Ry. Co., 10 C. B. (N. S.) 89. not be doubted when we contemplate the Evidence. -Evidence of the use of the resources which science brings to the aid stack by others is admissible on the of machinists; at all events the law, in hold- question of the safety of the stack. F. ing railroad companies liable for dam- & B. Turnpike Co. v. Phila., etc., R. ages resulting from fires set out by their Co., 54 Pa. St. 345. As is also evidence engines, presumes they may prevent in- that the company changed the stack after juries resulting in that way

the accident happened. St. Joseph, etc., What Amounts to Negligence in the R. Co. v. Chase, ii Kan. 171. Construction of an Engine. - It has been eral usage as to inspection of each enheld as a matter of law that an engine gine as it arrived at the shops may be which throws burning brands to the dis- proven. Chicago, etc., R. Co. v. Quaintance of one hundred feet has not such tance, 58 Ill. 389. But evidence of the safeguards as the law requires. Jackson condition of other engines than the one v. Chicago, etc., R. Co., 31 Iowa, 176. producing the fire cannot be admitted. See Ill. Cent. R. Co, v. McClelland, 42 Erie R. Co. Decker, 78 Pa. St. III. 355. But a company is not bound 293. to use everything which mechanical skill 1. Chicago, etc., R. Co. v. Quaintance, or ingenuity can devise, whether it be 58 Ill., 389; Chicago, etc., R. Co. v. known or not, or capable of being ob- Clampit, 63 Ill. 95. If the company tained or not. Before a company can show that its engines are the best in be held liable for not using such improved use and were carefully inspected every contrivances, it must be shown, both by day by a competent person, and that use and experience of men, to be supe- they were skilfully managed, it would rior and effectual, A company is not seem that it is relieved from liability. bound to purchase a patent for every in- Spaulding v. Chicago, etc., R. Co., 30 vention which is claimed to be an im

Wis. 110.

But this must be shown diprovement. Spaulding v. Chicago, etc., rectly, and evidence of usage is not suffiR. Co., 30 Wis. 110; Toledo, etc., R. Co.


Baltimore, elc., R. Co. v. ShipV. Pindar, 53 Ill. 447; Longabough v. ley, 39 Ind. 251. See BURDEN OF Virginia City, etc., R. Co., 9 Nev. 271; Proof, in fra.

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Whether due care was used in operating the engine is a question of fact to be determined by the jury from all the facts and circumstances in the case. 1




1. Johnson v. Chicago, etc., R. Co., the engine from which the fire is claimed 31 Minn. 57: S. C., 13 Am. & Eng. R. to have escaped was a “competent, skil. R. Cas. 460. In this case the engineer ful, and careful engineer.” There was no testified: “I handled the engine very evidence introduced tending to show carefully, but did not operate the engine that the engineer mismanaged the enany differently from what I usually did. gine, or that he was negligent in any re.

I handled the engine with a spect with regard to its management; and great deal of care upon that occasion the jury did not find that there was any while in Farmington.” The court say: mismanagement or negligence on the “It was proper for the jury to consider part of the engineer; but in answer to the this evidence in connection with the fact following question put to the jury, to wit, that a very high wind was prevailing; “How did he so mismanage his engine that the place was a village, with build- as to set out the fire?" the jury answered, ings standing near the railway track, and "We cannot lell." And in answer to where the property of many persons the further question put to the wit, would be exposed to danger from the In what does the negligence of the railburning of a single building. While the road company in permitting the fire to engineer was, as the verdict shows, ordi- escape from its engine or train consist ?" narily a careful man in his business, it the jury answered, “We cannot tell.” may still be that the care which he usu- “ Under the findings of the jury and the ally exercised was not such as common evidence, we must, therefore, consider prudence apparently demanded on this that the engine was complete and perfect occasion. The fact as to whether proper in every respect, so far as the appliances

was exercised was left to for preventing the escape of fir only on the opinion of the engineer. concerned, and the engineer was a comNone of the facts as to the manner of petent, skilful and careful engineer, and operating the engine were presented. that there was nothing in the case tendThe reason or necessity for the dis- ing to show that he was negligent in the charging of an unusual quantity of sparks management of his engine; and we can(if the fact was so) was not explained.” not imagine where there could be any

** The expression ‘ordinarily prudent other room for negligence on the part of man,' or 'ordinary care,' without qualifi- the railroad company in permitting the cation, suggests merely the care that fire to escape which is supposed to have should be bestowed in cases of ordinary caused the injury.” Atchison, etc., R. danger. They are expressions inappro, Co. v. Riggs, 15 Am. & Eng. R. R. Cas. priate where the danger is extraordinary, 531; s. C., 31 Kan. 622. unless they are explained and applied to The correct rule seems to be, that where, the subject. If the danger is great the upon the facts proved, different minds care should be great in proportion. may draw different conclusions as to The ordinary care of an engineer on a whether or not such facts establish neglirailroad locomotive is a very high de- gence or the absence of it, the question gree of care, and the skill required is a is one proper to submit to the jury. Linvery high degree of skill. Such an en- coln v. Gillilan, 18 Neb. 114; Philadelgineer is an ordinarily prudent man’ of phia, etc., R. Co. v. Schultz, 93 Pa. 341; s. his class, and the phrase, thus explained, C., 2 Am. & Eng. R. R. Cas. 271. would be correct. Diamond v. North- The fact that the same engine has set ern Pacific R. Co., 6 Mont. 580; s. C., several successive fires on the same trip 29 Am. & Eng. R. R. Cas. 124.

and the same day tends to show improper In an action to recover for damages construction, operation, or want of repair. for a fire set by a locomotive the jury Slossen v. Burlington, etc., R. Co., 60 found “that the engine from which the Iowa, 215; s. C., 7. Am. & Eng. R. R. fire escaped was of the most improved Cas. 509. invention and construction, so far as the To overload a locomotive is negliappliances for preventing the escape of gence. Toledo, etc., R. Co. w. Pindar, fire were concerned;" and also found that 53 I11. 447. the engine '-was in good condition, so far The company has the right to use any as all the appliances for preventing the kind of fuel in common use, even infeescape of fire were concerned;" and also rior, unless its use was known to it to be found that the engineer who managed hazardous. Collins v. New York, etc., R.

V. Proof of Origin of Fires. It devolves on the plaintiff to prove by a preponderance of the evidence that the fire was communicated by sparks or cinders from the railway engines. It need not be shown that any particular engine was at fault, but it will be sufficient if the fire is proved to have been set out by any engine passing over the defendant's railway, and the evidence may be wholly circumstantial, as, first, that it was possible for fire to reach the plaintiff's property from the defendant's engines ; and, second,

Co., 5 Hun (N. Y.), 499. But where engineer and fireman; and if you find wood was used in a coal-burning engine from the evidence that the defendant it was held that negligence might be in- carelessly or negligently managed its ferred. St. Joseph, etc., R. Co., 11 Kan. road in this respect, and that by reason 47; Chicago, etc., R. Co. v. Quaintance, of such negligence a fire was set, the 58 III. 389. In New Brunswick R. Co. defendant is liable,”-in effect directs v. Robinson, 11 Sup. Ct. of Canada, 689; the jury that if they find that the engineer S.C., 29 Am. & Eng. R. R. Cas. 132, R. and fireman were unskilful, and that by owned a barn situated about two hun- reason of such lack of skill the fire was dred feet from the New Brunswick R. set, then the plaintiff is entitled to reCo's line, and such barn was destroyed cover; and when the complaint in such by fire, caused, as was alleged, by sparks action alleges that the defendant perfrom the defendant's engine. An action mitted the engine to be out of repair, was brought to recover damages for the and carelessly and negligently used, thus loss of said barn and its contents. On charging that the engineer and fireman the trial it appeared that the fuel used by were negligent, and there is no allegation the company over this line was wood, that they were unskilful, such instruction and evidence was given to the effect that is erroneous. Babcock v. Chicago, etc., coal was less apt to throw out sparks. It R. Co. (Iowa), 33 N. W. Rep. 628. also appeared that at the place where the Unlawful Rate of Speed.-In Martin v. fire occurred there was a heavy up grade, West. U. R. Co., 23 Wis. 437, Dixon, J., necessitating a full head of steam, and in delivering the opinion of the court, therefore increasing the danger to sur- says (p. 440): “We have no doubt that rounding property. The jury found the danger to buildings and other adjathat the defendant did not use reason- cent property liable to injury and destrucable care in running the engine, but in tion by fire caused by the emission of what the of such

coals and sparks from the engine when sisted did not appear by their finding in rapid motion was one of the mishaps Held, reversing the judgment of the which the statute limiting the rate of court below, that the company were speed through cities and villages was deunder no obligation to use coal for fuel, signed to prevent, and are therefore of and the use of wood was not in itself the opinion that for losses so occasioned evidence of negligence; that the finding by trains moving at a greater rate of of the jury on the question of negligence speed than the statute prescribes the was not satisfactory, and that therefore company is responsible.” there should be a new trial.

But in an action against a railway comSo if using a greater amount of steam pany for the value of property destroyed than is necessary causes the engine to by fire alleged to have been caused by emit an unusually large number of sparks, its negligence in running a train, it apit is negligence. Great Western Ry. Co. peared that the train was running within v. Haworth, 39 111. 346. Under the par. a village at an unlawful rate of speed. ticular circumstances of the case it was viz., at a greater rate than six miles per held that putting an unusually large hour (R. S. secs. 1809, 4393); and that quantity of coal in the firebox was not the train consisted of only two cars, and negligence. Phila., etc., R. Co. v. was running on a straight line; and the Gerges, 73 Pa. St. 121.

grade was not shown. There was no In an action to recover damages for other evidence that the undue speed inproperty alleged to have been destroyed creased the danger of fire. Held, that by fire set by defendant's engine, an it was error, as against defendant, to instruction that “negligence may be submit that question to the jury. Brusevidenced in various ways, such as the berg v. Milwaukee, etc., R.Co., 50 Wis., employment of an unskilful or careless 231; S.C., 2 Am. & Eng. R. R. Cas. 264





facts tending to show that it probably originated from that cause and from no other. 1

1. Field v. New York, etc., R. Co., 32 destruction of the plaintiff's property was N. Y. 339; Karsen v. Milwaukee, etc., caused by any of the defendant's locomo. R. Co., 29 Minn, 12; s. C., 7 Am. & Eng. tives. The question has often been conR. R. Cas. 501.

sidered by the courts of this country and in It is competent to prove that coals England, and such evidence has, we of fire had previously been found on the think, been generally held admissible as defendant's track, or had been dropped tending to prove the possibility, and a from its engines at or near the place consequent probability, that some locowhere the fire was set out. Such proof motive caused the fire, and as tending to not only renders it probable that the fire show a negligent habit of the officers and was communicated from the furnace of agents of the railroad company." one of the defendant's engines, but also Maule. J., in Piggott v. Eastern Ry.Co., raises an inference of some neglect that 3 Q.B. 242, held that such evidence was there was something unsuitable and im- competent. " The matter in issue was proper in the construction of the engine whether or not the plaintiff's property which caused the fire. Sheldon v. Hud- had been destroyed by fire proceeding son River R. Co. 4 Kern. (N. Y.) 218. To from the defendant's engines; and inthe same effect, Ross v. Boston, etc., R. volved in that issue was the question Co., 6 Allen (Mass.), 87; Smith v. Old whether or not the fire could have been Col. R. Co., 10 R. I. 22; St. Joseph, etc., so caused. The evidence was offered for R. Co. v. Chase, ii Kan. 47; Huyett v. the purpose of showing that it could; and Phila., etc., R. Co., 23 Pa. St. 373. for that purpose it was clearly material

The reason for this proof is very clearly and admissible.' And see Henrv al. stated in the case of Longabaugh v. Vir- South Pac. R. Co., 50 Cal. 176; Field z'. ginia City, etc., R. Co., 9 Nev. 271. Wic- New York Cent. R. Co., 32 N.Y. 339;

were permitted to testify that Ross v. Boston, etc., R. Co , 6 Allen previous to the fire which occasioned (Mass.), 86. If the origin of the fire is the injury they had frequently seen fires admiited, it would seem that such eviin the same wood-yard, caused by coals dence is not admissible. Smith v. Old dropped from the defendant's engines, Colony R. Co., 10 R. I. 22. and also at various times at the same Proof that the same engine on the place had seen sparks from the defend- same trip'caused other fires is admissible. ant's engines of sufficient size to set fire Alchison, etc., R. Co. 2. Bales, 16 Kan. to cord wood. The court in commenting 252; Patton v. St. Louis, etc., R. Co., 67 on this say: “ Plaintiff's wood caught fire Mo. 117; s. C., 23 Am. & Eng. R.R. Cas. in some manner to him at the time un- 364; Slosson v. Burlington, etc., R. Co., known. How did the fire originate ? This 60 lowa, 215; s.c., 7 Am. & Eng. R. R. was the first question to be established in the line of proof. Positive testimony could At the trial of an action against a railnot be found. The plaintiff was compelled road corporation for the destruction of from the necessities of the case to rely upon the plaintiff's property by fire alleged to circumstantial evidence. What does he have been communicated from a locodo ? He first shows, as in the New York motive engine of the defendant on its cases, the improbabilities of the fire hav- outward trip, the defendant introduced ing originated in any other way except evidence that the engine was furnished by coals dropping from defendant's with the ordinary appliances of a cone engines. He then shows the presence and netting for arresting sparks, which in the wood-yard of one of the engines of netting was examined on arrival at the the defendant within half an hour prior end of the route on the return trip the to the breaking out of the fire; then following day, and found to be whole and proves that fires have been set in the in good condition; and that the engine same wood-yard within a few weeks prior on the return trip was in the same condi.. to this time from sparks emitted from tion and used the same kind of fuel as defendant's locomotives,"

on the outward trip. Hild, that it was Proof of the same character was sus- competent for the plaintiff to show in tained by the Supreme Court of the rebuttal that the engine on the return trip United States in Grand Trunk R. Co. v. emitted sparks which set fire to property Richardson, 91 U. S. 454. It is said: in the same neighborhoed. Loring 2'. “The question, therefore, is, whether it Worcester, etc., R. Co., 131 Mass. 409. tended in any degree to show that the And proof is admissible to show that burning of the bridge and the consequent the same engine at other times emitted

Cas. 509.

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