Olmstead v. Oregon Short Line Railroad

McCARTY, J., after stating the facts, delivered the opinion of the court. 1 Appellant contends that, as the warranty deed given by Olmstead to Mrs. Brereton for the land on which 'the buildings in question stood is silent as to any reservation by the grantor, Olmstead, of these structures, it was error for the court to admit evidence of an oral agreement between the parties that the title to the buildings was to remain in the grantor, Olmstead. It is contended that this evidence tended to, and did, vary the terms of a written instrument, and that defendant was prejudiced thereby. If this were an action between Olmstead and Mrs. Brereton, involving the title to the buildings in question, the rule sought to be invoked in this case, that parol evidence is inadmissible to vary the terms of a written instrument, would apply. In this case, however, the party seeking to invoke the rule has no interest whatever in the question of the ownership, of the buildings destroyed, further than that, if the judgment is affirmed and it is compelled to pay the damages awarded, the judgment will protect it against any action Mrs. Brereton might bring to recover for the loss of these same buildings. If appellant must answer for the damages caused by the destruction of these buildings, it is immaterial to whom it shall answer, so long as it shall be held to answer but once. Nor is it evident that Mrs, Brereton could not, in the face of the record in this case, recover damages for the destruction of the buildings involved in this action. Smith v. Railway Co., 104 Iowa 147, 73 N. W. 581. Therefore the authorities cited by counsel for appellant, upon the question of the admissibility of evidence to contradict or vary the terms of a written instrument, have no application and do not control in a case of this kind, where the party seeking to invoke the rule is not a party to the deed, and has no interest in the ownership of the property, further than, as above stated, to protect itself against another action for the same cause. [521] 2 Appellant requested the court to direct a verdict in its favor, “No canse of action.” The refusal of the court to give this instruction is assigned as error. Appellant contends that the evidence introduced by it showed that the locomotive which it is claimed started the fire in question was equipped with the latest and best appliances for preventing the emission of sparks, and that it was ran and managed with care and caution by a skillful engineer, and that this evidence completely overcame the prima facie case made by plaintiff, hence it was entitled to a direction of a verdict in its favor. According to the doctrine announced by this court in.the case of Preece v. Rio Grande W.Ry. Co., 24 Utah 493, 496, 68 Pac. 413, and which is supported by the weight of authority, the starting of a fire by a locomotive is presumptively negligent, and the plaintiff, in order to make out a prima facie case, is only required to establish by competent proof the fact that the damage sought to .be recovered was caused by a fire so started, and -the burden is then upon the company operating the locomotive to show that it was provided with the necessary and proper appliances for preventing the emission of sparks and coals of fire, and that it was carefully operated. When this is done, plaintiff’s prima facie case is rebutted and overcome, and, unless there is proof of other acts of negligence than” those upon which plaintiff’s prima facie case rests, defendant is entitled to a verdict. In the case referred to (Preece v. Ry. Co., supra), Mr. Justice BASKIN, speaking for the court, said: “Under the doctrine held by those cases, the question of' negligence becomes a matter of law, and is excluded from the consideration of the jury only when the prima facie case of the plaintiff rests alone on the presumption of negligence which the law implies from the proof that the fire was started by the defendant’s engine, and that presumption has been overcome by undisputed evidence of the defendant showing that the engine was provided with proper mechanical contrivances, and was carefully managed. Under [522] the authority of those eases, when there is other evidence of negligence than that upon which such prima facie case rests, the question is one for the jury, and not for the court. In the ease at bar the plaintiff did not rely solely on the evidence which showed that the fire was started by defendant’s engine, but introduced other evidence which tended to prove the defendant’s alleged negligence. The .case was therefore properly submitted to the jury.” This same rule was followed in the case of Louisville R. R. Co. v. Lumber Co. (Ala.), 32 South. 745, 90 Am. St. Rep. 917. In that case the court said: “The principle is well established in this court, as a rule of evidence, that, in an action against a railroad company to recover damages resulting from fire alleged to have been caused by the negligent escape of sparks from a locomotive running on defendant’s road, the burden is on plaintiff in the first instance to show that the fire was caused by sparks emitted from defendant’s locomotive. . . . The mere communication of the fire from the railroad engine is of itself sufficient to raise a presumption of negligence against the company. With this prima facie proof of defendant’s liability raised in plaintiff’s favor, the burden is then devolved upon the defendant of showing that the engine alleged to have caused the fire was properly constructed or equipped with approved devices and appliances to prevent the escape of fire and sparks, was in good repair, and prudently managed and controlled, and, upon proof of these facts by defendant, the presumption arising from mere communication of fire from the engine is rebutted, and the plaintiff can not recover without making proof of other specific acts of negligence or want of care on defendant’s part.” 3 In addition to the evidence produced by respondent showing that the fire in question was started by appellant’s locomotive, there is evidence in the record tending to show that the appliances with which the locomotive was equipped to prevent the escape of sparks and coals were out of repair. One witness tes [523] tified, in part, as follows: “After the fire I investigated as to how it happened. ... I saw cinders or sparks as big as the end of my thumb. . . . They were upon the hill, as far as the top of the hank — scattered all along the track. I gathered some of them up, and have them. This was immediately after the fire. . . . I picked up the largest ones. Cinders the size of these were immediately after the fire scattered along there from the right of way up to where the buildings stood. They looked like there had been a small hailstorm, except some were larger than others. ” This testimony, which was corroborated by other evidence, considered in connection with the fact that several other fires were started in that vicinity by this same engine, and the further fact that it was shown at the trial that many of these cinders would not pass through the netting of the kind and size used in the locomotive on the occasion referred to, tended to support the theory of the respondent that the netting used in the locomotive at the time the fire occurred was out of repair, and it was for the jury to determine whether or not, under all the facts and circumstances as disclosed by the evidence, the railroad company was negligent in the management of its engine, and whether the destruction of plaintiff’s property was due to such negligence. Railway Company v. McCahill, 56 Ill. 28; Railway Co. v. Coats, 115 Fed. 452, 53 C. C. A. 382. The judgment is affirmed, with costs.' BASKIN, C. J., and BARTCH, J., concur.