Martin v. McCrary

Me. Justice Neil, after making the foregoing statement, delivered the opinion of the court. The degree of care required by one threshing wheat with a steam thresher, in respect of setting fires, is the same as that devolved upon railway companies in the use of their engines. That rule, as laid down in Railroad v. Fort, 112 Tenn., 432, 80 S. W., 429, is that “care com [320] mensurate with, the risk or hazard” must be used. In the same opinion the degree of care required is thus characterized. “A degree of care and prudence commensurate with the danger to which property is exposed by them in the lawful conduct of their business.” In the same case it is further said: “They are authorized to carry fire on them [the engines] for the purpose of generating steam, and when they have them properly constructed and equipped with spark arresters and appliances of the latest and most approved character to prevent the escape of coals and cinders, in good repair, carefully and skillfully handled, and observe such other precautions as the surroundings may call for to avoid the communication and spread of fire, they are not liable for property unavoidably destroyed by escaping sparks and cinders.” Again it is said: “As the danger necessarily attending the use of fire in locomotives is far greater in some places and upon some occasions than upon others, what is reasonable care in their equipment and management must always depend upon the facts and circumstances of each case. What would be ordinary care in the operation of them in the country, or in a wet season, might be gross negligence in a town or city, or in a drought, when and where the danger of communicating the fire is in the very nature of things much greater.” The burden of proof is upon the defendant in such cases to show that he, or it, as the case may be, has complied with all the requirements of the rule, since a presumption of negligence.aris.es upon evidence introduced [321] that a fire has been set by sparks escaping from an engine. Id. And what would or would not be ordinary care, under all of the circumstances proven in a given case, is always a question for the jury, or for the court when it sits without the intervention of a jury. Id. Applying these principles to the present case, we are of the opinion that the defendants were liable for the injury done. It was not sufficient for them to show merely that the spark arrester in question was of the kind generally in use, and that the engine did not emit sparks any more copiously “than was natural for any engine of similar kind and construction.” Operating, as they were bound to do, in the midst of dry and combustible material like wheat straw, they should have shown that their engine was, in respect of fire precautions, up to the state of the art at the time the fire occurred. Indeed, the defendants by their conduct clearly showed that they did not regard the spark arrester with which the engine was equipped as containing meshes sufficiently fine and close to enable them to work with reasonable safety in the midst of combustible material, since, when they used the engine in running a sawmill, in the midst, of course, of material easily ignited, like sawdust (and straw is even more combustible), they found it necessary to place a fine wire screen under the spark arrester, and to continue to renew this fine netting from time to time as it would wear out. That this netting was' in fact necessary, when using the engine for such a purpose, is shown by the fact that sparks escaped [322] and set fire to the wheat straw because of the hole in the surface of that netting referred to in the statement. Treating the engine as .properly equipped for the purpose to which it was put, by the combined use of the spark arrester and the under netting, the defendants were negligent in failing to make at least a daily inspection of the equipment referred to. It was not sufficient for the defendants to show that neither they nor their servants had knowledge of the hole in the netting. They had the means of knowledge, and should have used those means. The two general findings quoted at the close of the statement must be held findings of law, and as such they were incorrect, being, as we conceive, improper applications of the law to> the special facts found. It results that the judgment of the court below must be reversed, and judgment must be rendered here for the plaintiffs for the amount of the damages assessed, with interest and costs.