Shelly v. Philadelphia & Reading Railway Co.

Opinion by Mb. Justice Fell, This action was to recover for the loss of the plaintiff’s buildings by fire, alleged to have been caused by the negligent operation of an engine on the defendant’s road. It is stated in the declaration that the engine that caused the fire was one that drew a freight train on the south bound track between the hours of nine and ten o’clock p. M. on May 28, 1903. This train was identified by six of the plaintiff’s witnesses as a regular freight train, known as the New York milk train, that passed the station near the plaintiff’s buildings a few minutes before ten o’clock. These witnesses saw the train pass and noticed the throwing of sparks and coals by the engine. No other train going south passed near the time of the fire nor within two hours of it. There was an offer by the plaintiff to prove that the engine on several previous nights [164] within two weeks of the fire and on the night after it threw out coals of an unusual size. The witnesses failed to identify the engine that threw coals on other occasions as the one that drew the train on the night of the fire, and the testimony was struck out by order of the court. All the assignments of error relate to this order. In the absence of direct evidence of the origin of a fire that is imputed to the negligence of a railroad company in not providing spark arresters, evidence of the unusual throwing of sparks by the company’s engines and of other fires started by them at about the time of the fire in question is admissible. This rule obtains also where there is uncertainty as to the engine that caused the fire and it cannot be shown that the fire proceeded from a particular engine. This class of testimony is admissible because of the failure of direct proof and of the necessity of resorting to the proof of circumstances as the best evidence and the only evidence of which the case admits. Where, however, the fire is shown to have been caused, or in the nature of things could have been caused, only by sparks from a particular engine that passed near the time when it started, tire evidence must be confined to the condition of that engine and evidence of negligence in the general management and operation of the company’s engines is not admissible. When it is alleged that a particular engine caused the injury complained of, the inquiry is limited to the condition of that engine at the time, and testimony tending to show defects in other engines is irrelevant. These rules are clearly stated and the cases ón which they rest are discussed in Henderson v. Phila. & Reading Railroad Co., 144 Pa. 461. They have been adopted in a number of other jurisdictions: 13 Am. & Eng. Ency. of Law (2d ed.), 520, 522. The main argument for the appellant is in support of the proposition that because the witnesses were not able to identify the engine by its number or otherwise than as the engine that pulled a particular train, the offers of testimony rejected came within the rule stated in Henderson v. P. & R. Railroad Co., 144 Pa. 461, that “ When the particular engine which started the fire cannot be fully identified, evidence that sparks and burning coals were frequently dropped by engines passing upon the same road upon previous occasions is relevant and [165] competent to show habitual negligence.” By being “identified ” it is not meant that the engine should be known by its number, size or shape from all other engines, but that it should be known as the engine to which the probable cause of the fire is traced. The identification is not to distinguish it from other engines generally but to point it out as the engine that caused the injury. In this sense its identification was as complete as if its number had been known to the witnesses. They saw it pass, they knew it drew a train that passed nightly on a fixed schedule, they saw what it did, and that it was the only engine to which the fire could by any possibility be traced. The judgment is affirmed.