READING & COLUMBIA R. R. Co.

v.

LATSHAW.

(Advance Case, Pennsylvania. March 15, 1880.

The fact that, on a dry windy day, fire is discovered in a field upon the line of a railroad shortly after the passage of a train is not of itself evidence of negligence on the part of the railroad company.

In an action on the case for negligence against a railroad company, the plaintiff proved that fire was discovered shortly after the passage of a train along defendant's road in the plaintiff's field, and that it spread for a considerable distance along the line of the road, burning fences, woods, and grass, the day being somewhat windy. The defendant's testimony showed that the best spark-arrester known at that time had been used, and that a thorough system of inspection was in force, which would have discovered defects, if any existed. There was no evidence of the size or quantity of the sparks emitted:

Held (reversing the judgment of the court below), that the evidence of negligence on the part of the defendant was not sufficient to have been submitted to the jury.

Error to the Common Pleas of Berks County.

Case, by John Latshaw against the Reading & Columbia R. R. Co., to recover damages for the burning of grass, fences, and wood on his fields, caused, as alleged, by sparks that escaped from defendant's locomotive. The case was referred to arbitrators, but an appeal from their award was taken, and on September 6, 1875, a trial before Hagenman, P.J., was had. The evidence showed that on April 5, 1872, a freight train drawn by the locomotive "Oshkosh" had passed plaintiff's field on the line of the road, between ten and eleven o'clock in the morning, and about a quarter or half an hour later a fire in the field was discovered. It started about ten or fifteen paces from the railroad in a stubble field, and thence spread to the woods and fences adjoining, burning in the fields of three owners, and on both sides of the road; one witness testified that it smoked "along the road above and below from 100 to 500 yards;" there was some wind blowing at the time; no one saw the origin of the fire.

On behalf of the defendant, the general manager of the defendant's road, who was in 1872 the assistant superintendent, the engineer of machinery, the foreman of defendant's machine shop in 1872, the superintendent of the south end of defendant's road in 1872, and the chief engineer of the Philadelphia & Reading R. R. Co. testified that the spark-arrester used on this locomotive was the best that was known in 1872, that a daily inspection of the spark-arresters was made, and the wear could be easily seen; if they were not examined every day the engineer would be removed.

The engineer of the locomotive testified that he made an examination on the day of the fire, and the arrester was in good order.

The defendant's counsel presented the following points:

(1) That, as the only evidence offered by plaintiff was that shortly after the freight train passed, on the morning of the 5th of April, 1872, the grass was seen to be on fire, there is no evidence of negligence in the case, because the burning of the grass along the line of the road is not negligence, nor evidence thereof, and therefore the verdict must be for defendant. R. R. Co. t. Hendrickson, 2 W. N. C., 449.

(2) That, as the uncontradicted testimony of the case shows that the spark-arrester on the locomotive was of the most efficient kind and in good condition, and there is no evidence of mismanagement or carelessness in the running of the train, the defendant is not guilty of negligence, and the verdict must be for the defendant. R. R. Co. v. Yerger, 23 P. F. S., 121.

Answer." The mere fact of grass burning along the line of the road is not of itself evidence of negligence; and if the jury find that the spark-arrester was of the most efficient kind and in good condition, and the train was carefully run, the verdict must be for the defendant. But the jury may consider the evidence, as testified to by plaintiff's witness, of fire on both sides of the road, in Zinn's, Fisher's, and Latshaw's fields from ten to fifteen steps from the railroad, and of the smoke above and below from 100 to 500 yards, in determining whether negligence existed or not, and whether or not the spark-arrester was in good condition and the train carefully

run."

The court declined to charge as requested in the 4th point"That under the evidence the verdict must be for the defendant;" and further charged: "The locomotive named Oshkosh drew the train, and it is alleged by plaintiff that the spark-arrester was defective and at fault, and as the engine travelled, an unusual quan tity of sparks was thrown out, setting fire to the dried grass and fences on both sides of the road, and causing the burning complained of. The evidence of plaintiff, of Abraham Fisher, and James Beard is 'submitted, and is relied upon to sustain this action. . . . The plaintiff's evidence showed that after the train passed the grass began to burn on both sides of the railroad: burnt in Zinn's field, Fisher's field, and two places in Latshaw's field, ten to fifteen steps from the railroad, and that it smoked along the road above and below, from 100 to 500 yards. This testimony tended to contradict that of defendant as to condition of sparkarrester, however strong. It therefore becomes a question for the jury, and one which must be submitted for their decision." "If the jury find that there was negligence on the part of the company in the running of the engine, whereby an unusual and extraordinary amount of fire was thrown out, firing the grass and

fences and burning plaintiff's woods, the verdict should be for plaintiff, for such damages as the jury find from the evidence he has sustained."

Verdict for the plaintiff for $190.95, and judgment thereon. The defendant took this writ of error, assigning for error the portions of the charge quoted and the answers of the court to the 1st, 2d, and 4th points.

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Geo. F. Baer, for plaintiff in error: The charge exaggerated the state of facts presented. There was no evidence that "the sparkarrester was defective and at fault." There was no evidence that as the engine travelled an unusual quantity of sparks was thrown out." In Hendrickson v. R. R. Co. (30 Sm., 182), and Penna. R. R. Co. v. Stranahan (29 Sm., 405), there was testimony as to an unusual quantity of fire and sparks being emitted, but it is not suf ficient to send the case to the jury merely to prove the existence of a fire along the track, shortly after a train has passed, on a dry windy day. Hendrickson v. Railroad Co., 30 Sm., 188; Railroad Co. v. Yeiser, 8 B., 366; Railroad Co. v. Yerger, 23 Sm., 121

A. G. Green, contra: The existence of the fire to so great an extent as was proven was evidence of negligence, which the testimony of defendant's officers as to the spark-arrester was intended to contradict; it certainly was proper to leave it to the jury to say whether they believed this testimony, which, as their verdict shows, they did not.

There

STERRETT, J.-It must be conceded that the plaintiff below was not entitled to recover without sufficient evidence of negligence, on the part of the railroad company, in consequence of which his property was injured or destroyed. The only allegations of negligence were the failure of the company to use a sufficient sparkarrester and carelessness in the management of its engine. was not a particle of direct evidence of either, and the jury was asked to infer one or both from the fact that dry grass, stubble, etc., were ignited in several places on both sides of the road. The substance of the testimony, on the part of the plaintiff, was that on the fifth of April, when the fire occurred, the weather was dry and windy, and the dead grass, etc., along the line of the road was in a very combustible condition; that after the freight train had passed, smoke and fire were observed at several points in the immediate vicinity of the burning. It was not shown that sparks of an extraordinary or unreasonable size were emitted, nor was there any other testimony from which failure to use a sufficient spark-arrester, or improper management of the engine, could reasonably be inferred. On the contrary, it was shown, on the part of the company, that the spark-arrester in use was one of the most approved kind, and in good order, and that reasonable care was exercised in running the engine.

The company in operating its road had an undoubted right to use steam engines; and no person natural or artificial is answerable in damages for the reasonable exercise of a right, accompanied with a proper regard for the rights of others. The company was bound, however, to use spark-arresters of the most approved kind, keep them in good order, and exercise reasonable care and vigilance in running its engines. It was shown affirmatively by uncontradicted testimony that all this had been done.

The bare fact that dry grass and stubble on the line of the road were ignited was not of itself evidence of negligence in either of these particulars. It is impossible so to construct or equip an engine that no sparks will be emitted. The most that can be done is to prevent the escape of large sparks or coals.

The most approved spark-arresters necessarily permit the escape of small sparks, and, if these come in contact with dry and combustible material on a windy day, the result is very frequently a fire, more or less extensive according to the kind and quantity of material at hand for it to feed upon. The burning of dry grass and other combustible material along the line of the road, in the manner testified to in this case, without more, was neither negligence nor evidence from which a jury would be justified in finding negligence. The principle involved in this case was recognized and applied in Jennings v. The Railroad Company, recently decided in the Western District. Upon a state of facts differing in no essential particular from those of the present case, the jury was instructed to render a verdict for defendant; and in affirming the judgment, it is said, "To hold that the fact of the fire having taken place was prima facie evidence that the spark-arrester was defective, and therefore that the case ought to be submitted to the jury, would be practically to hold railroad companies liable for all fires; it is a notorious fact that no spark-arrester has yet been invented to prevent all sparks, and a little spark may kindle as large a conflagration as a large one. It depends on the dryness or humidity of the atmosphere, whether a spark will go out before reaching the ground, and whether what it reaches is in a condition to be easily ignited."

We are of opinion that the testimony was insufficient to justify the submission of the case to the jury. Judgment reversed..

See note, p. 275.

PHILADELPHIA & READING R. R. Co.

v.

SCHULTZ.

(Advance Case, Pennsylvania. May 3, 1880.)

It is a rule of law, that if reasonable precautions are taken in providing locomotives with appliances best suited to the prevention of damage by fire, the railway company or persons using them cannot be made liable though they fire every rod of country through which they run.

In an action against a railway company for damage caused by sparks emitted from an engine, the defendant adduced proof that the locomotive was furnished with an approved spark-arrester, in rebuttal of which the plaintiff was permitted to introduce evidence of numerous fires caused by the same engine:

Held that the question of negligence was properly submitted to the jury. It is not contributory negligence on the part of an owner of land along a railway to allow the accumulation of rubbish and brushwood on his property. A land owner along a railway assumes the risk of fires necessarily following the proper and lawful use of locomotives, but there is no liability on his part to guard against their improper and unlawful use.

Error to the Common Pleas of Lehigh County.

Case, by Reuben Schultz against the Philadelphia & Reading Railroad Co., to recover damages for injury done by fire to his woodland, fence rails, and timber, from sparks alleged to have been emitted from one of the defendant's locomotives. Plea, not guilty.

On the trial before HARVEY, P.J., the following facts appeared: On April 11, 1876, the plaintiff's woodland, which lies along the track of the Perkiomen R. R., of which the Phila. & Reading R. R. Co. are the lessees, was fired by sparks from the engine of a train known as the 10.30 passenger train. The fire, which broke out among dry leaves and rubbish on the bank of a cut on the company's land, spread through a small strip of woodland, on which there was also rubbish and brushwood belonging to Anthony Mechlin, which immediately adjoined the railroad, and thence to the plaintiff's woodland which lay next to Mechlin's, burning up and damaging a great quantity of fence rails, cordwood, and standing timber. At the place of the fire the road ran through a cut and the grade was heavy. The defendant produced evidence to prove that the engine had a proper spark-arrester which had been in use for some years before, and which was examined on April 10, 11, and 12, 1876, when its condition was found to be good and so continued until July 20.

In rebuttal the plaintiff proved that for two weeks prior to April 11 the engine of the 10.30 train had fired property along the road, that every day it came along there were fires along the road, that the sparks thrown out by the engine were of the size of hickory