McFarland v. Sayen

Grant, J. {after stating the facts). 1. Assignments 1 and 2 may be disposed of by saying that there was a sharp conflict in the evidence upon the question whether the defendant had a hood or spark arrester on the smokestack when it passed the plaintiff’s house and stood within about 20 feet while taking on water. A boy seven years old at the time of the fire, and nine at the time of the trial, was riding upon the engine, and testified positively that the screen or spark arrester was lying on the wood upon the engine at the time. Plaintiff also produced other evidence upon this point. The defendant produced evidence to the contrary. This question of fact was properly submitted to the jury, and we are unable to find that there was even a preponderance of evidence in favor of the defendant. 2. The court did not instruct the jury that it was the duty of the defendant to have a spark arrester sufficient “to entirely prevent the escape of sparks.” The court instructed them that it was the duty of the defendant to have an efficient spark arrester, such as “wereordinarily used.” He called the attention of the jury to the contention on the part of the plaintiff that there was no spark arrester upon the smokestack, and to the contention of the defendant that there was. No evidence was given, and the record does not bear evidence that any claim was made, that the spark arrester which the defendant had was not such as the law requires. Was it in use at the time ? was the question to which the evidence was directed, and was the sole issue on this branch of the case. No such issue is presented here as was presented in Cheboygan Lumber Co. v. Transportation Co., 100 Mich. 16, where the claim of the defendant was ( and it gave evidence to sustain it) that it used other appliances which rendered the [428] use of a screen or spark arrester unnecessary. The negligence here charged is the failure to use a spark arrester. The defendant by its plea asserted that it did use one. Under this record the failure to use it was negligence, and the jury properly so decided. The judgment is affirmed. Blair, C. J., and Montgomery, .McAlvay, and Brooke, JJ., concurred.