Callaway v. Sturgeon , 58 Ill. App. 159 ( 1895 )

Mr. Justice Green

delivered the opinion of the Court.

This suit was brought to recover damages for the destruction of fence rails and damage to meadow of plaintiff by fire, averred to have been caused by sparks and brands of fire thrown from defendant’s locomotive engine. The jury found defendant guilty of the negligence charged, and assessed plaintiff’s damages at $82. For this sum and costs of suit judgment for plaintiff was entered, to reverse which the defendant sued out this Avrit of error. Twelve errors are assigned, and one only seems to be relied on, viz.: That the verdict was against the eAddence and ■ the court erred in refusing to set it aside.

It was proven that the fire was communicated by the defendant’s locomotive engine while passing along its railroad, and by the provision of Par. 104, p. 1949, Starr & Curtis Kev. Statute, 2d Yol., this proof must be taken as full prima facie evidence to charge the defendant with the negligence complained of. The prima facie case for plaintiff thus established was sought to be overcome by the evidence of servants of the defendant, to the effect that the engine was equipped with a spark-arrester of the most approved style, in good repair, and was operated by a skilled and competent engineer and fireman.

But it also appears in evidence when the fire was communicated, the engine was pulling a light train at ordinary speed, on a down grade, and the engineer testified on cross-examination that if the spark-arrester was in good condition under the conditions in which he was then running his train, he did not believe the engine could throw fire and ignite grass 110 feet away, and further testified that he did not believe that sparks could escape through a properly constructed arrester under the conditions in which he was then running and set fire to grass 110 feet off. And it does appear by the proof, the fire was communicated to the grass of plaintiff at that distance from the passing engine. A conflict of evidence thus existed touching the character and condition of the spark-arrester, a vital question in the case, which the jury determined in favor of appellee, and no good reason appears for disturbing the verdict. St. L., A. & T. R. Co. v. Stratz, 47 Ill. App. 342; L. E. & St. L. Con. R. Co. v. Spencer, Ibid. 503; C. & E. I. R. R. Co. v. Gazette, 133 Ill. 21; T., St. L. & K. C. R. R. Co. v. Kingman, 49 Ill. App. 43; and L. E. & W. v. Black, decided by this court June 23, 1894, sustain our view above expressed. Judgment affirmed.