Great Northern Ry. Co. v. Coats

THAYER, Circuit Judge. This action was brought by Clark G. Coats, the defendant in error, against the Great Northern Railway-Company, the plaintiff in error, to recover the value of certain property, consisting of a dwelling house, two barns, and a quantity of farming utensils and machinery, which, as he alleged, were destroyed on April 26, 1899, by a fire which was set out on the defendant company’s right of way by sparks, cinders, and coals which were emittea by one of the defendant company’s engines. The complaint charged, in substance, that the defendant company carelessly and negligently permitted grass, weeds, bushes, hay, stubble, and other combustible materials to grow and accumulate upon its right of way at the place where the fire originated, and on the day last aforesaid, by its servants, agents, and employés, in running and operating its engines and trains over its railway at said place, carelessly and negligently set fire to said grass and other combustible materials there permitted by said defendant to accumulate, by said engine emitting and discharging sparks, cinders, and live coals, thereby igniting said grass and other combustible materials, which said fire was, through the defendant’s carelessness and negligence, set upon its right of way, and, being so set, was, through the defendant’s carelessness, permitted to extend from its right of way to the plaintiff’s premises, and, by so extending, consume a large quantity of the plaintiff’s property, which was situated on a tract of land adjoining the right of way. We quote the above from the complaint, using substantially the language of the pleading. There was a verdict below in favor of the plaintiff for the sum of $11,000, and the case is before this court for review, various errors having been assigned. At the conclusion of the case the defendant company moved the court to withdraw from the jury the issue as to the manner in which the engine that occasioned the fire was operated and managed, for the reason, as stated in the motion, that the uncontradicted evidence tendered by the defendant company relating to the management of the engine “is so clear and circumstantial that no reasonable person can doubt its verity.” The court overruled the motion, and its action [454] in that behalf is the first alleged error to which our attention is directed. Preliminary to a discussion of this point, it should be observed that the testimony for. the plaintiff below showed that the fire started on the defendant’s right of way about 1:3o p. m., and not over a minute or two after the engine and train which is supposed to have kindled the fire had passed the place where it was discovered ; that at that point on the right of way there were some dry weeds and grass, which extended all the way to the plaintiff’s buildings; that a high wind was blowing in the direction of the buildings, and that the fire, after it had caught on the right of way in the grass and weeds, ran very rapidly to the plaintiff’s barns and dwelling house, and destroyed them before much of the contents could be removed. In view of the testimony, it is manifest that the fire was kindled by coals, sparks, or cinders which were emitted or dropped by the defendant company’s engine; and there was sufficient evidence to warrant the jury in finding that some combustible material, such as dry grass and weeds, had been permitted to accumulate on the defendant’s right of way, and that the fire started therein on the right of way. It follows, therefore, that the testimony in question not only created a presumption of negligence on the part of the defendant company, but, in so far as it showed that the company had allowed combustible material to accumulate on its right of way, it established a specific act of negligence, to which the injury complained of might well be attributed. McCullen v. Railway Co., 41 C. C. A. 365, 101 Fed. 66, 70, and cases- there cited; Eddy v. Lafayette, 1 C. C. A. 441, 49 Fed. 807; Id., 163 U. S. 456, 466, 16 Sup. Ct. 1082, 41 L. Ed. 225; Lesser Cotton Co. v. St. Louis, I. M. & S. Ry. Co. (decided atthe present term) 114 Fed. 133. Learned counsel for the railroad company do not controvert these propositions, but they assert that the trial court should have told the jury, in substance, that the engine was properly managed, and that the company was guilty of no negligence in that respect, and that a reversible error was committed in not eliminating that issue from the case. We think that these propositions are untenable. The testimony introduced by the plaintiff, that his property had been destroyed by a fire kindled on the right of way of the railroad by coals, cinders, or sparks emitted by a passing locomotive, if the jury believed such to be the fact, as they must have done, cast on the defendant company the burden of overturning the presumption of negligence thus raised; that is to say, the burden of showing that the locomotive was properly handled or operated, and that due care had been exercised in the construction and equipment of the same and in keeping it in repair, so as to prevent the emission of cinders and sparks, so far as that end could be attained without impairing its efficiency. McCullen v. Railway Co., 41 C. C. A. 365, 101 Fed. 66, 70. This presumption could only be overcome by testimony, and, unless we apply to this class of cases a rule different from that which is applied in other cases, it was the province of the jury to determine the weight that should be accorded to the testimony which was introduced for that purpose, and [455] also to determine the credibility of the witnesses who testified pn that subject. It was well said by the supreme court of Minnesota in Karsen v. Railroad Co., 29 Minn. 12, 15, 11 N. W. 122, when construing a statute of that state which makes the scattering of fire by a locomotive engine prima facie evidence of negligence: “Neither is a jury necessarily bound to accept as conclusive the statement of a witness that an engine was in good order or carefully and skillfully operated, although there is no direct evidence contradicting the statement. They have a right to consider all the facts and circumstances in evidence bearing upon the condition or mode of operating the engine, and upon the accuracy of witnesses.” It was further said, in substance, in the same case, that the statute under consideration creates a disputable presumption of negligence on the part of a railroad company, when it appears that one of its locomotive engines has set out a fire which has destroyed adjoining property; that the effect of the statute is (this latter fact being shown) to cast upon the company the burden of proving affirmatively that it has done its duty, and was not in fact guilty of any negligence; that it must do this by satisfactory evidence, as in any other case where one holds the burden of proof; and that if a jury finds against the company, deciding that the presumption of negligence has not been overcome, it is within the power of the trial court, and its right and duty, as in other cases, to set aside the verdict, if it is of the opinion that it was not justified by the evidence. We cannot well understand upon what theory the statement of persons, who were in charge of a locomotive when it occasioned a disastrous fire, that it was properly and prudently managed, etc., must be accepted by a court as conclusive, and as overturning, as a matter of law, the presumption of negligence raised by other testimony. It would seem, rather, that the triors of the fact ought, in such a case, to consider how far- the interest of such witnesses — their natural desire to absolve themselves from all blame — may have colored their evidence, and how far their statements are consistent with other facts and circumstances which have been proven. If a court undertakes, to weigh such evidence, and say that the witnesses are credible, and also to decide as to the effect of the proof, it plainly assumes the functions of the jury, or at least a function which is discharged by the jury in other cases. Our attention has been called by learned counsel for the plaintiff in error to the case of Menomonie River Sash & Door Co. v. Milwaukee & N. R. Co., 91 Wis. 447, 65 N. W. 176, 179, where the reporter says in the syllabus that the inference of negligence arising from the fact that a fire was set by sparks from a locomotive is overcome by undisputed evidence that the engine was properly constructed and equipped, and was carefully inspected the day before the fire, and found to be in proper order, and was properly managed. But it is important to note that in that case the court said that the manner in which the fire was occasioned was not observed by any one, but was wholly a matter of inference, and that in that respect the case before it differed from other cases decided by the same court, namely, Kurz & Huttenlocher Ice Co. v. Milwaukee & N. R. Co., 84 Wis. 171, 53 N. W. 850, and Stacy v. Railway Co., 85 Wis. 225, 54 N. W. 779, in which latter [456] cases it was expressly decided that it was erroneous to withdraw from the jury the question respecting the negligent construction and operation of an engine, where it appeared that a fire started on the track shortly after an engine passed, although the company did produce witnesses who testified that the engine was provided with the most approved appliances to prevent the escape of fire, and was properly handled. If we should adopt the doctrine of the Wisconsin case first above cited (Menomonie River Sash & Door Co. v. Milwaukee & N. R. Co.), it would not fit the case in hand, because in this case the fire originated on the defendant’s right of way, in the weeds or grass, and was discovered not over a minute, as the plaintiff below said, after the train passed, and was evidently occasioned by sparks or cinders dropped by the locomotive. According to the Wisconsin decisions, therefore, the issue as to the skillful operation of the locomotive on the occasion of the fire was properly submitted to the jury. In addition to the considerations aforesaid, which are ample, in our judgment, to show that the trial court committed no error in the respect now claimed, it will be profitable to refer to the testimony bearing upon the issue concerning the operation of the train. The defendant company relied principally upon the testimony of its engineer and fireman, who testified, in substance, that, about the time or immediately after the engine passed the point where the fire was kindled, both the front and the rear dampers of the engine were closed; that the front damper had been closed from the time the train left Yankton; that the screen netting in the smokestack was down or in place; that there was no opening about the ash pan from which fire could have escaped; that the steam was shut off; and that thereafter the train was running on its acquired momentum at the rate of about 15 miles per hour, which was sufficient to carry it up an incline beyond the point where the fire occurred, and down the other side into the city of Sioux Falls. On the other hand, counsel for the defendant in error direct attention to evidence which shows that, for r'ne distance before reaching the place where the fire was set, the tram had been climbing an up grade on a curve, under a forced draught, and that by so doing it had acquired such a momentum that, with the steam shut off and all the dampers closed, it was able to run more than a quarter of a mile beyond the place where the fire was set, on an up grade, before reaching the crest of the hill. It is claimed that these facts tend to show that the train was hot operated with the degree of care that ought to have been exercised on a very windy day, past a place where there was considerable combustible material on the right of way, and buildings near by. We refer to this testimony, and the contentions made with reference thereto, mainly for the purpose of saying that in the light thereof the trial judge was not bound to decide, as a matter of law, that the trainmen had told the truth, that the engine was skillfully handled on the occasion of the fire, and that no negligence could be imputed to the defendant company in that respect. This was a question for the jury to determine in the light of all the circumstances of the case, as well as the question whether the defendant company had permitted combustible material to accumulate on its right of way. The burden being on the defendant company, as before shown, to [457] prove affirmatively that it had operated its engine in a proper manner, we are not able to say that the proof relied upon to establish the skillful management of the engine was so clear and circumstantial as to remove all doubt on that point in the mind of a reasonable person. But even if this issue had been eliminated from the case, it was still the province of the jury to determine, as counsel for the plaintiff in error are compelled to concede, whether the defendant company had not been guilty of negligence which occasioned the injury, in permitting combustible material to accumulate on its right of way. It is most probable, we think, that the defendant company was held responsible for the fire for that reason. Counsel for the plaintiff in error argue two other assignments of error relating to the instructions, which are all that require special notice. There was some evidence at the trial that on one occasion before the fire the plaintiff below plowed certain furrows east of the railroad track, and along the margin of that part of the right of way where the fire originated, telling the defendant’s sectionmen at the time not to burn the grass and weeds east of these furrows, as he had sown some tame grass east of them, which he did not care to have destroyed, or words to that effect. In view of this testimony, the defendant company asked the court to instruct the jury, in substance, that if the plaintiff plowed these furrows on the east side of the railroad track, and forbade the sectionmen to burn east of them, and if they found that the fire originated east of the furrows, then the plaintiff could not recover. The court gave this instruction, with the modification that, on the state of facts supposed, the plaintiff could not' recover, provided the engine and train were carefully and properly managed. Counsel for the plaintiff in error complain of this modification of their request, but we are of opinion that no error was committed in this respect — First, because there seems to have been no testimony that the fire originated in the grass east of the furrows; and, second, if there had been such evidence, and if it also appeared that the fire was' occasioned by the negligent handling of the engine, we perceive no reason why the defendant should not have been held accountable. Because the plaintiff ordered the sectionmen not to bum the grass outside of the furrows and on his own land, where he had sown tame grass, it does not follow that the company had the right to kindle a fire east of the furrows by the negligent operation of one of its trains. Besides, even if he did give the sectionmen orders not to destroy the grass outside of the furrows by burning, he appears to have made no objection to their removing such grass or weeds in any other way, — as by cutting them down. There is no merit in this assignment, nor is it one of any importance. Furthermore, the lower court instructed the jury that, in determining whether the defendant company exercised ordinary care on the occasion of the fire, “the velocity of the wind may be taken into consideration,” and this latter excerpt from the charge is criticised. If we fully comprehend the nature of the criticism, it is that the statement, as made, was too- general; that the jury should have been-advised exactly how and in what manner they might take the velocity of the wind into account; and that, because this was not done, the458 defendant was prejudiced. We are not able to concur in that view. Jurors, as well as judges, are presumed to know that railroad trains do and that they must run on windy as well as on other days, and that a railroad company is not negligent merely because it operates a train in a high wind. We have no reason to suppose that the jury failed to comprehend what was in the mind of the court, namely, that more care ought to be exercised in handling fire on a windy day than on a calm day, and that, in determining whether the defendant had' exercised due care on the occasion in question, they might very properly také into account the force of the wind on that day. Upon the whole, we have failed to find that the trial court committed any error on the trial of this case which would warrant a reversal of the judgment below, and it is therefore affirmed.