Matthews v. Pittsburg & Lake Erie Railroad , 18 Pa. Super. 10 ( 1901 )

Opinion by

Orlady, J.,

The plaintiff brought this action of trespass to recover damages for injuries caused, as he alleged, by a locomotive of the defendant discharging sparks or cinders in large numbers and of unusual size which set fire to and totally destroyed certain of his property. The defendant called a number of witnesses to show, not only the want of probability of the facts testified to by plaintiff’s witnesses, but of the impossibility of sparks of the size stated being thrown from the engine and of their being carried the distance mentioned. A model of the engine was exhibited to the jury with a section of the spark guard or arrester in use at the time of the fire, which showed that it was composed of No. 8 wire netting and had two and one half to three meshes to the inch so as to make uniform interstices of three sixteenths of an inch in size, and that it was the latest approved and best designed appliance in use. If the defendant’s witnesses were believed by the jury there was a complete answer to the plaintiff’s case.

The court instructed the jury as follows: “ The defendant is only responsible for such loss as occurred through its negligence and the burden is on the plaintiff to prove the alleged negligence. That is, if you find from the evidence that the barn in question was burned by sparks emitted from the locomotive in question that would not be sufficient. If there was no negligence, no mismanagement, no carelessness on the part of the railroad company, it would make no difference whether the barn was burned or not, .... to make the railroad company liable in this suit the burden is on the plaintiff to prove that the fire was communicated by the locomotive of the defendant company, and further prove that there was negligence in the construction or management of the locomotive. The mere fact that the barn took fire and burned up is not of itself evidence that the spark arrester was defective.” The testimony was as contradictory as language could make it. 'If that of the plaintiff be true the spark arrester was deficient in construction or was not in good repair: If that of the defendant be true it was a physical impossibility for live sparks of the size stated to be forced through a three-sixteenths inch mesh. The evidence in relation to the important facts was so conflicting and was stated with such minuteness and tenacious confidence that it was necessary for the jury to reconcile it if possible, and if that could not be done then to arrive at a verdict by the fair weight of the testimony. In Huyett v. Philadelphia & Reading R. R. Co., 23 Pa. 373, the question was, What is sufficient evidence of carelessness on the part of a railroad company in case of a fire occasioned by sparks from an engine ? The Supreme Court says, “ How is it possible for the court to say, as a matter of law, how many sparks, or how many fires caused by them, it takes to prove carelessness ? How can the law declare, except as a deduction from facts found, what are sufficient spark catchers. . . . They are bound to temper their care according to the circumstances of danger, 20 Pa. 171, and exert more care when the property of others is in danger than when it is not; and their evidence will be tried by this rule.

If the evidence tends to show that the sparks which caused the fire were emitted from a particular .locomotive, the case should be submitted to the jury notwithstanding the testimony that the engine was provided with a sufficient spark arrester: Phila. & Reading R. R. Co. v. Hendrickson, 80 Pa. 182; Penna. Company v. Watson, 81* Pa. 293; Lehigh Valley R. R. Co. v. McKeen, 90 Pa. 122; Henderson v. Phila. & Reading R. R. Co., 144 Pa. 461; Van Steuben v. Central R. R. Co., 178 Pa. 367; s. c., 185 Pa. 293; Thomas v. N. Y., etc., R. R. Co., 182 Pa. 538.

Our Supreme Court held in Henderson v. Railroad Company, supra, “ It is the duty of the railroad company, in the use of an engine, to use such reasonable precaution as may prevent damage to the property of others, hence in Lackawanna, etc., R. R. Co. v. Doak, 52 Pa. 379, where although there was no direct evidence that the building was fired by the engine, or that sparks were emitted from it at the time, yet the building was near the railroad and was discovered to be on fire when the train passed, and it was shown that the engine had no spark arrester, it was held that the question of negligence was properly submitted to the jury. The effect of this ruling was to establish the principle in Pennsylvania that in ca"se of loss by fire, fairly attributable to sparks from a railroad company’s locomotive engine, the absence of a spark arrester is prima facie evidence of negligence on the part of the company.”

The defendant concedes that it is its duty to adopt the most improved and efficient appliances as a precaution against danger in general use, and to avail itself of every such known safeguard. On this -theory it made its defense to the plaintiff’s claim.

The plaintiff’s property was undoubtedly destroyed by fire, the source of which was, on plaintiff’s evidence, so directly to be traced to the defendant’s locomotive that it was proper to submit it to a jury to determine the question. The plaintiff’s wife testified in substance, that she was standing on the porch of her house, but a short distance from the barn, and saw the particular engine pass, that it was going at a great rate and was throwing out great volumes of smoke; that it made a real cloud over the house as it passed; that in the smoke were great large particles of burnt cinders as large as a finger end; they fell all round the porch; she gathered up some of them near the road and barn and called Dr. Linville’s attention to them; the smoke had just cleared away when she saw the fire in the barnyard, and when she got to the barnyard the fire wasn’t any larger in the straw than a bucket. She tried to put it out but could not as the wind was so great, and there was no fire between that and the railroad track. This eyewitness was corroborated by Di\ Linville and several others in that there was a high wind blowing in the direction of the barn, that the engine emitted a large volume of smoke, that cinders — some being three fourths of an inch in size — were picked up around the bam, that the. fire started in the straw immediately after the engine passed, and that similar cinders had been carried an equal distance from engines on the same road and set fire to leaves near the barn.

Negligence is the gist of the action and in determining this we cannot consider the veracity of the witnesses, the conflict in their testimony, or the weight of the evidence; these are matters exclusively for the jury, with which we have nothing to do, as has been decided in many cases. It is sufficient in this case to say that there was evidence from which a jury might infer that there was an absence of that watchful care either on the part of the company or of its employees which ought to have been exercised under all the circumstances. “ When the thing which causes the injury is shown to be under the management of the defendants and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care (Shearman & Redfield on Negligence, secs. 59, 60, quoted with approval in Shafer v. Lacock, 168 Pa. 497. See also Sopherstein v. Bertels, 178 Pa. 401, Valentine v. Coburn, 10 Pa. Superior Ct. 453,” and Fisher v. Ruch, 12 Pa. Superior Ct. 240), and whether, under the disputed facts, the explanation offered by the defendants is satisfactory or not is for the jury and not for the court.

The mere fact that sparks were emitted or that a fire was caused thereby was not sufficient to make the company liable, but these facts coupled with the additional ones shown by the plaintiff’s witnesses made it a proper case for a jury. “ While the burden of proof is on the plaintiff in such cases, it is not required that the fact be established by direct or positive proof; like any other fact, it may be established by circumstantial evidence; and, on account of the great difficulty in proving negligence in such cases, any proper evidence from which negligence may be inferred is sufficient to throw the burden on the defendant. . . . There may be no direct proofs of negligence, yet the way in which an injury is done may be such that negligence is the most probable hypothesis by which it can be explained; and when this is so the defendant must disprove negligence by showing that he exercised care: ” Henderson v. Railroad Co., supra.

Under all the plaintiff’s evidence there was a prima facie presumption of negligence which, having once arisen, remained until overcome by countervailing proof. Whether it was so overcome was a question of fact for the jury: McCafferty v. Penna. R. R. Co., 193 Pa. 339; Kane v. Philadelphia, 196 Pa. 502 ; Dormer v. Alcatraz Paving Co., 16 Pa. Superior Ct. 407.

The assignments of error are not sustained and the judgment is affirmed.