ing, and the sixteenth was taken to the ac- | permitted it to be given to the jury. In Antion of the court in granting the plaintiff's napolis & Elkridge R. R. Co. v. Gartt, 39 prayer, and in rejecting the defendants' first, second, third, fourth, fifth, sixth, and eleventh prayers, and in overruling the defendants' exception to the plaintiff's prayer. The defendants' seventh, eighth, ninth, and tenth prayers were granted, and will be hereafter considered in the discussion of the propositions of law raised on the various exceptions set out in the record. Md. 115, and in Green Ridge Railroad Co. v. Brinkman, 64 Md. 53, 20 Atl. 1024, 54 Am. Rep. 755, this character of testimony was held to be admissible for the purpose of establishing the fact from which the jury may find negligence on the part of the defendant. Judge Bartol in delivering the opinion of the court in Gantt's Case, supra, said: "Here the evidence was confined to the time of the occurrence, within a week of the happening of the fire on the plaintiff's property, and pointed directly to the condition of the defendant's engines, tending to prove that they were not in suitable repair at the time of the injury, and we think both upon reason and authority it was admissible for the purposes mentioned." All of these exceptions present the same legal question, and for the reasons stated we are clearly of opinion that the testimony was properly admitted. But apart from the admissibility of the testimony ob Lewis had previously testified, without objection, that on the morning of the fire, as on previous mornings, he saw the dinkey engines of the defendants at work, and just before they got to the icehouses they would open, exhaust, and throw cinders 10 or 15 feet high out of stack, greater the blast, more cinders would fly out of the stack, and his testimony was not subsequently excluded. It appears from the evidence that the appellee, at the time of the fire, was the owner of an icehouse with certain appurtenant buildings, consisting of a stable, engine, boiler house, etc. The ice storage house contained 6.600 tons of ice, worth $1.11 a ton. The appellants were engaged, at the time of the fire, in certain railroad construction work for the Pennsylvania Railroad Company, and were operating what are called "dinkey engines" of about 10-ton weight hauling cars with dirt and other material over tracks laid for the purpose from a point on the Phila-jected to in these exceptions, the witness delphia, Baltimore & Wilmington Railroad to a point on the Columbia & Port Deposit Railroad. These construction tracks were located about 6 to 10 feet distant from the icehouse, and ran on the east front of the property of the appellee, between the Pennsylvania Railroad track and the icehouse. The fire occurred about 24 minutes after 10 o'clock, on the morning of June 16, 1905, and in the end of the icehouse next to the railroad. The icehouse measured 90 feet 7 inches from east to west by 160 feet 4 inches from north to south. It was 93 feet 3 inches from the northeast corner of the icehouse to the center of the Baltimore & Ohio Railroad (the bridge across the Susquehanna river), from the northwest corner of icehouse to center line of Baltimore & Ohio Railroad is 80 feet, and 64 feet from the northwest corner of the icehouse to the pier of the railroad company. The tracks of the Pennsylvania Railroad also passed along the east side of the icehouse; the nearest of those tracks being about 20 feet from the icehouse. The declaration alleges that the property was destroyed by fire caused by sparks thrown out by an engine which was operated by the defendants on a railroad in close proximity to the plaintiff's icehouse. The negligence was charged to have consisted in the selection and equipment of the engines furnished and by the lack of ordinary care in the operation of the engines by the defendants' employés. The first question presented by the record arises upon the first, second, third, fourth, fifth, and sixth exceptions, and relates to the admission of testimony of various witnesses to the effect they had seen the dinkey engines, when working near the defendants' property, throw sparks shortly before the fire, and that these sparks had set fire to combustible material near the dinkey tracks. The court, we think, properly over The testimony contained in the eighth exception was properly rejected. The fact that engines on the Baltimore & Ohio Railroad, while passing through different sections of Harford county, would throw out sparks and fire sufficient to set fire to rubbish and other inflammable materials, could throw no light upon the question whether the fire complained of here was caused by the engines of the defendants. It did not tend to show negligence in the case under consideration and was in no way connected with the fire in question. It was too remote and simply tended to prove that an engine was capable of setting fire to property near its railroad. The ninth, tenth, eleventh, twelfth, thirteenth, and fourteenth exceptions were taken to the admission in evidence of certain entries made by one Wall, who had been inspector of engines, in the service of the Baltimore & Ohio, as to the inspection of locomotives made by him. These entries were made in a book of the Baltimore & Ohio Railroad, and were made at the time of the inspection of the engines. The entries were in the handwriting of Wall, who had left the service of the road and was absent from the state, and his whereabouts unknown. The witness Given testified that they were in the handwriting of Wall and were made in the regular course of official duty. We find no error in the admission of this testimony. In Heiskell v. Rollins, 82 Md. 15, 33 Atl. 263, 51 Am. St. Rep. 455, it was said: "It has in the regular course of business, he having, no interest at the time in stating an untruth, should be received in evidence after the clerk's death on proof of his handwriting, and such entries are equally admissible where the witness is absent from the state." Reynolds v. Manning & Co., 15 Md. 523; Morris & Co. v. Columbia Iron Works, 76 Md. 357, 25 Atl. 417, 17 L. R. A. 851. The fifteenth exception was taken to the action of the court in overruling a general objection to certain witnesses being allowed to testify in rebuttal. We do not deem it necessary to go into a recital of the testimony embraced in this exception. An examination of the record will show it was strictly and directly in rebuttal of the evidence by the defendants' witnesses to the effect that a Baltimore & Ohio Railroad freight train, bound east, passed the east end of the bridge about the time of the fire throwing out smoke and cinders, and shortly afterwards the icehouse was seen on fire. The evidence was clearly competent for the purposes offered, and, being evidence in rebuttal, was largely in the discretion of the trial court. We come now to a consideration of the rulings of the court upon the prayers set out in the sixteenth exception. The plaintiff's prayer is as follows: The jury are instructed that if they shall find from the evidence that the plaintiff's icehouses with their contents were destroyed by fire communicated from the defendants' engines, and shall further find that the defendants did not exercise reasonable care and diligence to avoid as far as practicable injury to the property along the line of the road upon which their engines were operated by having their said engines properly constructed and in good condition, then their verdict must be for the plaintiff. This prayer as applicable to the facts of this case is entirely free from objection and was properly granted by the court. There is testimony in the record tending to establish every hypothesis of the prayer, and the special exception that there was no evidence that the defendants' engines were not properly constructed was rightly overruled. There was evidence that the dinkey engines had no spark arresters in them at the time of the fire, that they had been taken out, and none of them had netting in their smoke box. There was also evidence to the effect that the Tyrone, one of the engines, stopped in front of the icehouse before the fire, and that it had no spark arrester in it. In Ryan & McDonald v. Gross, 68 Md. 380, 12 Atl. 115, 16 Atl. 302, the court, held it was the duty of the defendants to see that the spark arrester was in proper repair, and, if it was not in proper repair, in consequence of which sparks escaped from the engine and set fire to rubbish along the road, and spread thence to the plaintiff's land, these facts were sufficient to justify the jury in finding negligence on the part of the defendants, and that the destruction of the plaintiff's property was the direct and natural consequence of such negligence. But apart from this, the jury were instructed, by the defendants' ninth prayer, that, to entitle the plaintiff to recover in this case, it must prove by a preponderance of testimony two facts, first, that the locomotives of the defendants emitted the sparks that set fire to the icehouses of the plaintiff, and, second, that the defendants were guilty of negligence in the management of the engine that emitted the sparks that set fire to the icehouses of the plaintiff, and if the testimony in this case should be such as to leave the minds of the jury in a state of equipoise as to either of the facts, their verdict must be for the defendants. And by the defendants' eighth prayer the jury were further told that if from the evidence it is equally probable that the fire originated from any cause, other than the defendants' engines, the defendants are not liable in this action, and their verdict must be for the defendants; that the defendants cannot be made liable in this action on a mere probability that the fire was caused by their engines, but only on the preponderance of proof that it was so caused, and then only upon proof of negligence on the part of the defendants. The theory of the defendants' case, we think, was fully submitted in their granted prayers, and they obtained all the law they were entitled to. The defendants' first, second, third, fourth, fifth, sixth, and eleventh prayers were properly refused. The first, second, third, and fourth prayers were demurrers to the evidence and could not, under the facts of the case, have been granted. The fifth and sixth prayers submitted the same propositions covered by the defendants' eighth and ninth prayers, and were properly refused. The eleventh prayer was manifestly erroneous. It asserted a proposition not bearing upon the case, and its rejection could not have injured the defendants. Finding no error in the rulings of the court, and as the case was one to be submitted to the jury upon the facts, the judgment will be affirmed. Judgment affirmed, with costs. (109 Md. 93) GENERAL ACCIDENT, FIRE & LIFE ASSUR. CO. v. HOMELY. (Court of Appeals of Maryland. Dec. 9, 1908.) 1. TRIAL ($ 139*) - JURY QUESTION-WEIGHT OF EVIDENCE. The weight of the evidence is for the jury. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 332; Dec. Dig. § 139.*] 2. INSURANCE (§ 669*)—ACTIONS - INSTRUCTIONS-CAUSE OF DEATH. death by accidental injury, an instruction that In an action on an insurance policy for if insured was injured by being struck by a bale of hay, and on the next day there was a welt on his back, and an examination on the fourth day thereafter showed a tension of the muscles of the back, and three days thereafter insured died of acute nephritis caused by the accident, and was free from all disease until his death except that caused by the accident, plaintiff could recover, while not affirmatively requiring a finding that his death was caused by the accident independent of all other causes, did so in effect. [Ed. Note. For other cases, see Insurance, Dec. Dig. 669.*] later clause of the document a modified lia- 3. DEATH (§ 17*) Where death results from a disease caused [Ed. Note. For other cases, see Death, Cent. Dig. § 19; Dec. Dig. § 17.*] 4. INSURANCE (§ 668*) — ACTIONS FOR JURY-CAUSE OF DEATH. - QUESTION In an action on an insurance policy for death by accidental injury, where it was undisputed that insured was struck by a bale of hay, and was thereafter ill, whether the accident was the proximate cause of his illness and subsequent death held for the jury under the medical testimony. [Ed. Note. For other cases, see Insurance, Dec. Dig. § 668.*] 5. INSURANCE (§ 669*) - ACTIONS - INSTRUCTIONS-APPLICABILITY TO ISSUES. Where the policy sued on, in addition to stipulating for a certain amount in case of death from purely accidental causes, also provided for payment of one-fifth of that sum if the injury, fatal or otherwise, was due wholly or in part to disease or bodily infirmity, instructions which barred any recovery at all unless death was due wholly to accidental causes were properly refused. [Ed. Note. For other cases, see Insurance, Dec. Dig. § 669.*] Appeal from Superior Court of Baltimore City; Thos. Ireland Elliott, Judge. Action by Harriet Homely against the General Accident, Fire & Life Assurance Company. From a judgment for plaintiff. defendant appealed. Affirmed. Argued before BOYD, C. J., and BRISCOE, SCHMUCKER, BURKE, THOMAS, and WORTHINGTON, JJ. * of the amount which would otherwise be payable under this policy anything herein to the contrary notwithstanding." The declaration in the case before us only avers an insurance against death resulting directly and independently of all other causes from bodily injuries effected through external, violent, and accidental means, but declares upon the policy designating it by its number and date. There is but one bill of exceptions in the record, and that is to the court's action on the prayers. The plaintiff offered but one prayer, which the court granted. It asked the court to instruct the jury "that if they shall find from the evidence that on October 20, 1906, George H. Gardiner was insured in the defendant company against death by accident, and that upon that date the said George H. Gardiner sustained an injury through being struck by a bale of hay upon the back or side, and that upon the day following said accident there was a welt upon his back, and that on the fourth day after the accident an examination of the said Gardiner by two practicing physicians disclosed a tremor, tension, and sensitiveness of the muscles of the back, and that on the 27th day of October, 1906, the said George H. Charles W. Main, for appellant. Jefferson Gardiner died of acute nephritis, caused by D. Norris, for appellee. SCHMUCKER, J. The appellee sued the appellant company in assumpsit in the superior court of Baltimore city upon a policy I of insurance issued by it upon the life of her son, George H. Gardiner. The verdict and judgment below were in her favor for the full amount of the policy, and the company took the present appeal. the said accident, and, if they shall further The sec The policy sued on is of the now familiar class which furnish indemnity to a designated beneficiary for loss accruing from accidental and external injuries, fatal or other wise, to the assured. The expressions employed in the earlier part of the policy limit the liability of the company to losses resulting from external acidental agencies "independently of all other causes," but in a ing, which frequently produces death. Being asked on cross-examination whether he considered Gardiner's injury as the sole cause of his death, he replied: "I should have to give a certificate to that effect if I signed his death certificate, seeing him only once as I did. That is all I can say. I should have been compelled to fill out his certificate that the man died of traumatic nephritis, the result of a blow, as I had seen him only once." Dr. Frank Smith fixed the date of the joint visit of Dr. Iglehart and himself to Gardiner as October 23, 1906, three days after the accident. He expressed views as to the nature and cause of Gardiner's illness and death similar to, but less positive than, those of Dr. Iglehart. The record contains, as it always does in such cases, expert medical testimony of an opposite tenor introduced on behalf of the defendant. Several witnesses also testify that they saw the person of the assured after the accident and could see no bruises or other evidences of injury thereon; but the question of the weight of the evidence is one for the jury. We find no reversible error in the action of the learned judge below upon the prayers. death, then the verdict must be for the de-, cause acute nephritis with uraemic poisonfendant." The court struck out the concluding words, and granted the prayer as thus modified. The third prayer declared that if the jury found from the evidence that at the time of the accident the insured was suffering from a pre-existing disease, in the absence of which the accident would not have caused his death, and that he died because the accident aggravated the disease or the disease aggravated the effects of the accident, then their verdict must be for the defendant. There is evidence in the record tending to show the following state of facts: The assured was an unmarried colored man about 40 years of age, who had been employed for more than 6 years prior to his death at the Warwick stables in Baltimore city. He was a person of unusual strength, in apparently good health, and was uniformly industrious and attentive to his duties. He took an occasional drink of liquor, but was not intemperate in his habits. On Saturday afternoon, October 20, 1906, when he was at work on the ground floor of the stable, a bale of hay was thrown down the hatchway from an upper story of the building, and struck the ground nearby him, and then, rebounding, struck him on the back, and knocked him down. He was picked up by his fellow workman and complained of pain in his back where the hay struck him. He showed his back to one of them, Harrison Hayden, who testified that he saw a bruise there, and rubbed it with liniment. Gardiner remained at the stable the remainder of the afternoon, and wanted to go on with his work, but his comrades would not permit him to do so. After going home on Saturday evening, he never returned to the stable, but, after suffering for some days from acute nephritis accompanied by violent convulsions, died on October 27th. Dr. E. B. Iglehart, a physician and surgeon of 19 years' practice and an instructor of surgery in the Johns Hopkins Medical School, testified that he, in company with Dr. Frank Smith, examined Gardiner after his accident, and that he gave evidence of having received an injury. The doctor said, in that connection: "I found a definite muscle spasm on the right of his back and some tenderness on pressure over his back on the left side." That to his mind the man's condition was entirely consistent with having been struck by a bale of hay. A hypothetical question was then put to the doctor stating the circumstances of Gardiner's accident, subsequent illness and death, and asking him to state with those facts before him, taken in conjunction with the facts discovered by him in his examination, what in his opinion caused the man's death. He replied: "I don't see how the accident can be ruled out as the factor of his death. I don't see how the accident could be ruled out." In response to further questions, he The plaintiff's prayer, which was evidently intended to refer to a recovery of a verdict for a death of the assured from accidental causes alone, does not affirmatively require the jury to find that his death was caused by the accident independently of all other causes, but it does so in effect by requiring them to find that he died of acute nephritis caused by the accident, and, also, that he was at the time of the accident and until his death free from disease except the acute nephritis caused by the accident. It has been held in a number of cases that, where the death is from a disease which was itself caused by the accident, the latter is to be regarded as the true and predominant cause of the death, and the disease as a mere link in the chain of causation, and the death is to be regarded as having resulted solely from the accident independently of all other causes. Freeman v. Mercantile Accident Ins. Co., 156 Mass. 351, 30 N. E. 1013, 17 L. R. A. 753; Delaney v. Modern Accident Club, 121 Iowa, 528, 97 N. W. 91, 63 L. R. · A. 603; Fetter v. Fidelity Co., 174 Mo. 256, 73 S. W. 592, 61 L. R. A. 459, 97 Am. St. Rep. 560; Horsfall v. Pac. Mut. Life Ins. Co., 32 Wash. 132, 72 Pac. 1028, 63 L. R. A. 425, 98 Am. St. Rep. 846; Carey v. Preferred Acci. Ins. Co., 127 Wis. 67, 106 N. W. 1055; Cent. Acci. Ins. Co. v. Rembe, 220 Ill. 151, 77 N. E. 123, 5 L. R. A. (N. S.) 933, 110 Am. St. Rep. 235; Fidelity & Casualty Co. v. Johnson, 72 Miss. 333, 17 South. 2, 30 L. R. A. 206, and cases collected in note thereto. The defendant's first prayer was properly refused. The uncontradicted evidence showed the occurrence of the accident to tiff's rights as against the defendant, and the [Ed. Note. For other cases, see Injunction, to be left in doubt by the bill, and the defendA party's right to an injunction ought not ant ought not to be required to guess what plaintiff relies on. illness and death. The testimony of Drs. | rights, and what they were; and, if the plainIglehart and Smith was certainly legally sufficient to go to the jury upon the question of the causal connection between the accident and the death under the authority of the cases above cited by us, as well as the cases of City Pass. Railway v. Kemp, 61 Ma. 74, and P. B. & W. Ry. Co. v. Mitchell, 107 Md. — 69 Atl. 422. Nor was there any error in modifying the defendant's second prayer or in rejecting its third one, because both the third prayer and the second one in its original form totally disregarded the operation of clause "h" of the policy sued on, which made the company liable to the extent therein stated for injury, fatal or otherwise, to the assured due wholly or in part to disease or bodily infirmity. Finding no error in the rulings of the court below, we will affirm the judgment appealed from. Judgment affirmed, with costs. (109 Md. 111) STINSON v. ELLICOTT CITY & CLARKS- (Court of Appeals of Maryland. Dec. 4, 1908.) An appeal lies from an order overruling a demurrer to a bill. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 688-698; Dec. Dig. 102.*] 2. APPEAL AND ERROR (§ 369*)-PROCEEDINGS FOR TRANSFER OF CAUSE-PAYMENT OF FEES OR COSTS. [Ed. Note.-For other cases, see Injunction, Cent. Dig. §§ 223-242; Dec. Dig. § 118.*] 7. EQUITY (§ 223*)-PLEADING DEMURRer GENERAL DEMURRER. Where plaintiff's right to an injunction is left in doubt by the bill, and no other relief could be granted, if such defect did not exist, a demurrer to the bill should be sustained, though it also contains a prayer for general relief. [Ed. Note.-For other cases, see Equity, Dec. Dig. § 223.*1 Appeal from Circuit Court, Howard County; Wm. Henry Forsythe, Jr., Judge. Action by the Ellicott City & Clarksville Company against William H. Stinson. From an order overruling a demurrer to the bill, defendant appeals. Reversed. Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, WORTHINGTON, and THOMAS, JJ. Edward M. Hammond, for appellant. seph L. Donovan, for appellee. Jo BOYD, C. J. This is an appeal from an order overruling a demurrer to a bill of complaint, filed by the appellee against the appellant. The bill alleges that the plaintiff under its charter constructed a turnpike road leading from Ellicott City to Clarksville, in The right of appeal from an order overrul-Howard county, "and that by virtue of a ing a demurrer to a bill does not depend upon the payment of the $10 and costs which Code Pub. Gen. Laws 1904, art. 16, § 154, requires to be paid by a party whose demurrer is overruled, and nonpayment thereof is not ground for dismissing the appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1998; Dec. Dig. § 369.*1 3. INJUNCTION (§ 118*) - ACTIONS FOR INJUNCTIONS-PLEADING-BILL. The general rule that a bill in equity must contain a clear statement of the facts upon which plaintiff relies for relief is applied rigorously to a bill for an injunction. [Ed. Note.--For other cases, see Injunction, Cent. Dig. §§ 223-242; Dec. Dig. § 118.*] 4. INJUNCTION (§ 118*)-ACTIONS FOR INJUNCTIONS PLEADING-BILL. If a turnpike company's right of way, sought to be protected by an injunction, is claimed by the plaintiff under a deed or other writing from a third person, the deed, or a copy of it, should be filed with the bill, or sufficient reason for its nonproduction given, and a bill which is defective in this respect is demurrable. [Ed. Note. For other cases, see Injunction, Cent. Dig. & 242; Dec. Dig. § 118.*] 5. INJUNCTION (§ 118*) - ACTIONS FOR INJUNCTIONS-PLEADING-BILL. If a turnpike company's right of way, sought to be protected by an injunction, is not claimed under a deed or other writing, the plaintiff's bill should state how it acquired its grant from the late John R. Clarke, who was then the owner of the property hereinafter referred to, and which is now owned by William H. Stinson, as hereinafter referred to, your complainant was granted the right to go upon the property and build through and upon said property the pike hereinbefore referred to, and that they have exercised the said right and privilege for the past 30 years or more." It then alleges that, while the roadway was in peaceful possession of the complainant, and it was enjoying the privileges granted by its charter "and by the grant from the said John R. Clarke," the defendant, who owned and resided upon the farm, binding upon said turnpike, without the consent of the plaintiff, and against its protest, with his servants and employés entered upon the turnpike and dug a large number of holes in it, placed posts in said holes from four to five feet in height, and built a fence commonly called a "post and rail fence," and is about to build more fence of a like character upon the pike. It further charges that the fence will greatly lessen the width of the pike, will endanger lives and property of persons having occasion to |