Adriance, Platt & Co. v. Lehigh Valley Railroad

Williams, J.: The judgment should be reversed and a new trial granted, with costs to the appellant to abide event. The action was brought to recover damages for the destruction of personal property by fire alleged to have been set by the negligence of the defendant. There was no dispute but that the complaint sufficiently alleged that the plaintiff and defendant were corporations, the plaintiff’s ownership of the property and its value: that the property was [34] stored in a building alongside the tracks 'of the defendant’s railroad, and that the building was set on fire and the property wholly destroyed by sparks, cinders and coals thrown from a locomotive belonging to and operated by defendant and run along the tracks by the side of the warehouse, and that this, fire was so set by the negligence of the defendant in having a defectively constructed and equipped engine. It would seem that nothing more was necessary; that is, if the proofs showed these facts, the plaintiff would be entitled to recover. It was not necessary to allege what duty the law imposed upon the defendant as to the protection of the property of others against fire set by defectively constructed engines run over its road. It is said if the building was on the defendant’s lands, if the plaintiff was a gratuitous licensee of the building from the defendant, the plaintiff could not recover, and that the complaint should allege the relations between the parties or that no such relation existed, in order to permit a recovery thereunder. We think the1 defendant was called upon to allege these facts by way of defense if it sought to relieve itself from liability by reason thereof. The plaintiff was not bound to allege negatives ; that the building was not on defendant’s lands; that it was not defendant’s gratuitous licensee. The complaint alleged ownership of the property, occupancy of the building and negligent destruction by defendant of the building and property. If these facts were proved no presumption or inference could be indulged in that any conditions existed relieving the defendant from liability. If defendant desired the benefits of any such conditions it was bound to allege and prove them. The court should not have disposed of the case upon the pleading, but should have taken the evidence and allowed it to be determined upon the merits. The decision was altogether too technical. It shortened the trial, but it was hardly fair to turn the plaintiff out of court so summarily. The judgment should be reversed as before suggested. All concurred, except Spbing, J., who dissented in an opinion, in which Hiscook, J., concurred.