Peter v. Chicago & West Michigan Railway Co.

Montgomery, J. This action is brought to recover the value of a large quantity of lumber belonging to the plaintiff, which was consumed by fire occurring on the 18th of November, 1893, which fire is claimed to have had its origin in sparks emitted from an engine on defendant’s road. The lumber was manufactured for the plaintiff by Horning & Hart, who owned a mill at Keno, a place between three and four miles north of Woodville, a station on the defendant’s Big Rapids branch. The track into Keno was built by defendant at its own cost, except for right of way, and was originally used exclusively for the purpose of taking out the plaintiff’s lumber. Later the defendant extended the track to rea'ch other mills farther north, owned by other parties. The evidence of plaintiff tended to show that the engine used on the road set out the fire, which destroyed over 7,000,000 feet of plaintiff’s lumber, valued at over $90,000; that the engine used was of an old pattern, known as the diamond-stack pattern, not in common use. The defendant’s testimony tended to show that the engine was in good order, of a design in common use, and entirely serviceable. The defendant also offered testimony tending to show that the lumber where the fire started was piled but eight feet from the track, and that provisions for putting out fire were wanting. The jury found for the defendant, and the plaintiff brings error. — 326 — Numerous questions are presented in the brief of the plaintiff’s counsel, the more important being whether the court laid down the correct rule as to the negligence of defendant; whether the court erred in submitting tlie question of plaintiff’s contributory negligence to the jury; and whether there was error in allowing comment's of counsel as to the relation of certain insurance companies to the case, it appearing that the lumber had been insured. 1. The statute defines the extent of liability of railroad companies, and, in determining the question of defendant’s duty, reference to the statute is essential. Section 3378, 1 How. Stat., reads as follows: “Any railroad company building, owning, or operating any railroad in this State shall be liable for all loss or damage to property by fire originating from such railroad, either from engines passing over such roads, fires set by company employés by order of the officers of said road, or otherwise originating in the constructing or operating of such railroad: Provided, that such railroad company shall not be held so liable if it prove to the satisfaction of the court or jury that such fire originated from fire by engines whose machinery, smokestack, or fire-boxes were in good order and properly managed, or fires originating in building, operating, or repairing such railroad, and that all reasonable precautions had been taken to prevent their origin, and that proper efforts had been made to extinguish the same in case of their extending beyond the limits of such road, when the existence of such fire is communicated to any of the officers of such company.” It will be noted that the character of the engines to be used is not defined, although it is required that, to relieve the company from liability for fires, the engines, v etc., must be shown to be in good order and condition. It is not open to question that under this statute, on the plaintiff’s showing the fact of the fire from the defendant’s locomotive, the burden is cast upon the defendant to show that the locomotive was in good order and condition, and properly managed. The court in this case so charged. The plaintiff claims, however, that the court did not lay down the correct rule as to the character of the engine re — 327 — quired in order to relieve the defendant. The court charged upon this subject as follows: ' “The railroad company is exonerated from liability under the statute if the appliances it has used to prevent or limit the escape of sparks and fire from the locomotive are such as have been in common use for a long time for that purpose, and have substantially guarded against the danger sought to be avoided. * * * If you should find that this defendant used this engine, and it was of such a pattern as was in common use by careful, experienced, and prudent railroad operators, and such as they would use and did use for this kind of business at that time, why that is all that is necessary for this defendant to do, so far as the quality of the engine is concerned.” We think the charge of the circuit judge correctly stated the rule as established in this State in Hagan v. Railroad Co., 86 Mich. 615. As was said in that case: “Two or more kinds of appliances may be used, each one of which is approved by a number of railroad companies which are managed by practical and prudent men, and the adoption of each may have been after careful consideration of the merits of all; yet, unless that adoption and approval has some weight, there is no safety in the use of either.” Under the instruction given, the jury were not authorized to find that it was proper to use a character of locomotive which had been generally displaced by better appliances. The only doubtful expression in the charge was the reference to “use for this kind of business.” If this were understood to mean that a, less degree of care was required in this service than in the ordinary business of the company, it was not proper, as we think the company was bound to use the same degree of caution at this place as at other points on the road. 2. The case presents a question of exceeding importance and interest, which is whether the plaintiff’s contributory negligence is a bar to recovery under this statute. This question was mooted in Briant v. Railroad Co., 104 Mich. 307; but, as its decision was not necessary to a — 328 — determination of the case, it was not settled. The authorities bearing directly upon the subject are not numerous, but, as we read them, they are harmonious. The question of the effect of plaintiff’s contributory negligence has arisen in three classes of cases: First.- Where the liability of defendant rests upon the common law. Second. Where the liability of the company for fires set out by its locomotives is made absolute by statute. Third. Where, as in this State, such liability is limited by the statute itself. In the first class of cases, the contributory negligence is a defense; in the second class, the liability of the company is absolute, and the contributory negligence of the plaintiff is not a defense. 3 Elliott, R. R. § 1238. This case falls within the third class. The statute creates an absolute liability for all loss or damage to property by fire originating from engines, etc., with a proviso that the company shall not be liable if it proves certain facts enumerated, among which is not the contributory negligence of the plaintiff. In the case of Laird v. Railroad, 62 N. H. 254 (13 Am. St. Rep. 564), the supreme court had under consideration a statute of Vermont which read: “When any injury is done to a building or other property by fire communicated by a locomotive engine of any railroad corporation, the said corporation shall be responsible in damages for such injury, unless they shall show that they have used all due caution and diligence, and employed suitable expedients, to prevent such injury.” Gen. Stat. Vt. (1862) chap. 28, § 78. The court held that the contributory negligence of plaintiff did not constitute a defense, under this statute. The decision was rested upon two grounds: (1) The analogy of the Vermont decisions holding that the contributory negligence of the owner of animals killed or injured by a railroad company which had not fenced its tracks constituted no defense; and (2) that the fair construction of — 329 — the statute led to the result reached. The court said: “The statute expressly declares in what cases the corporation shall be relieved from liability, and no other defense is recognized, except showing ‘that they have used all due caution and diligence, and employed suitable expedients, to prevent the injury;’” and held that the rule “ Fxpressio unins est exclusio alterius ” applied. It will be readily seen that the case cited is directly in point, and that both grounds upon which the case rested, may be urged with equal force in this State; for not only is there the same room for the application of the rule “Fxpressio unius est exclusio alterius,” but we have also held in this State that the defense of contributory negligence is not available in an action under the preceding section of our statute (1 How. Stat. § 3377), which provides that the company shall be liable for damages done to cattle, etc., in case of a failure to fence its tracks. Flint, etc., R. Co. v. Lull, 28 Mich. 510; Neversorry v. Railway Co., 115 Mich. 146. The reasoning of the court in Laird v. Railroad, supra, is convincing, and seems to us unanswerable. To reach any other conclusion, we must interpolate into the statute words not found there, and create an additional ground for exemption. The contention of appellant is also sustained by numerous cases which hold that, under a statute fixing the liability of a railroad company for fires set out by its locomotives, the defense of contributory negligence is not available. Of this class are Rowell v. Railroad, 57 N. H. 132 (24 Am. Rep. 59); West v. Railway Co., 77 Iowa, 654; Union Pacific R. Co. v. Arthur, 2 Colo. App. 159. As is stated by the learned author in 3 Elliott, R. R. § 1238, there may be cases in which, after the property is set on fire by a railroad company, the owner, by a slight effort, could save it from destruction, and that such cases should be subject to a different rule. In such case, it might be said with much force that the damage does not directly result from the fire. But in this case we are dealing with the alleged precedent negligence of plaintiff, — 330 — and must hold that the defense is not available under the statute. If the defense were available in any case, we should also be of opinion that no such act of negligence was shown in piling the lumber eight feet from the track. See Stacy v. Railway Co., 85 Wis. 225; Fero v. Railroad Co., 22 N. Y. 209 (78 Am. Dec. 178). We have not overlooked the cases cited by defendant’s counsel. The case of Ross v. Railroad Co., 6 Allen, 87, is negative authority. The court did not go out of its way to disapprove the holding of the court below. If it be treated as affirming the doctrine contended for, it is at variance with the New Hampshire and Iowa cases. The opinion in Murphy v. Railway Co., 45 Wis. 222 (30 Am. Rep. 721), is able and exhaustive, but, so far as the case discloses, it rests on the common-law doctrine of negligence. We have been cited to no statute of Wisconsin, nor have we been able to find any, in force when the action in Murphy’s Case arose, which bears on the subject. The case is not, therefore, an authority which aids us in placing a construction on our statute. 3. The fact appeared on the trial that the lumber consumed was insured. This did not affect the plaintiff’s right to recover. Perrott v. Shearer, 17 Mich. 48; Hagan v. Railroad Co., 86 Mich. 619. Obviously, therefore, the comment as to the amount of capital stock of the insurance company was untimely, and should have been omitted. We need not determine whether this comment was damaging error not cured by the charge, as the case must go back on other grounds. Judgment reversed, and new trial ordered. Hooker and Moore, JJ., concurred with Montgomery, J.