Dunning v. Maine Central Railroad , 91 Me. 87 ( 1897 )

Savage, J.

Action on the case to recover for the loss of property by fire alleged to have been communicated by a locomotive engine of the defendant corporation. The case comes up on a motion for a new trial, and on exceptions. The entire evidence and the charge of the presiding justice are made a part of the bill of exceptions. The plaintiff’s claim is based solely upon the statute, R. S., c. 51, § 64, which provides that “when a building or other property is injured by fire communicated by a locomotive engine, the corporation using it is responsible for such injury.” No question of negligence on the part of the defendant is involved. The principal, if not the only, issue of fact submitted to the jury was whether the fire which occasioned the loss of the plaintiff’s ice house was, in fact, communicated by one of the defendant’s locomotives. The plaintiff relies upon circumstantial evidence. The defendant claims that the circumstances proved are not sufficient to raise a legitimate inference that the fire was" communicated by one of its engines.

The evidence introduced by the plaintiff shows, we think, that on May 27, 1896, the Dover and Dexter train drawn by one of the defendant’s engines passed the plaintiff’s ice house at 4.85 o’clock P. M.; that about fifteen or twenty minutes later fire was discovered burning on the roof of the ice house which inclined towards the railroad, at a point about fifty-five feet from the railroad track, and somewhat higher than the level of the track, but lower than the top of the smoke stack of the engine; that when first discovered, the fire had burned over a space about two feet square; that when an attempt was made immediately afterwards to beat it out with a stick, it was scattered to other parts of the roof; that there was no appearance of fire within the building until after the fire burned through the roof; that on that day no ice had been taken from the building, the ice house engine had not been run, and no fire had been made or used within the building; that two or three workmen had been employed about the building during the day, one of whom was the watchman; that he finished work and left the building five or ten minutes before the passing of the Dover and Dexter train; that when he left, there was no appearance of fire in or about the building; that no person had been seen upon or about the roof that day; that the season was very dry, the roof was dry and the shingles old; that a strong wind was blowing towards the ice house from the railroad; that in the vicinity of the ice house, the railroad track, in the direction the Dover and Dexter train was going, had an up grade of forty-one feet to the mile; that locomotive cinders were seen about the track at about the time of the fire, and that sparks were seen coming from a locomotive, but whether it was from the locomotive in question does not appear. There is no evidence that the fire was communicated by any of the defendant’s engines, unless it was by the one drawing the Dover and Dexter train.

Against the objection of the defendant, the plaintiff was permitted to introduce evidence to show that at various times about the time that this fire was caused and in that vicinity, engines of the defendant corporation, by .emitting sparks, cinders or coals, spread fires, and that fires were seen on, or in the immediate vicinity of the track, shortly after the passage of defendant’s engines, of such a character as to show that they were caused by such engines; and the admissibility of testimony of this class is the principal question raised by the defendant’s exceptions. Before the testimony was admitted, the defendant’s counsel claimed that the plaintiff had already identified the engine as the one drawing the Dover and Dexter train, and gave notice that the engine drawing that train would be fully identified by the defendant, and the defendant did subsequently introduce evidence that the engine which drew that train was No. 95. Also, before the testimony concerning other fires was admitted, the defendant’s coun'sel expressly admitted the possibility of engines setting fires; and he now claims that because of this admission, the testimony, even if otherwise relevant and admissible to show such a possibility, should have been excluded. We do not think so.

It does not lie in the power of one party to prevent the introduction of relevant evidence by admitting in general terms the fact which such evidence tends to prove, if the presiding j ustice in his discretion deems it proper to receive it. Parties as a general rule are entitled to prove the essential facts, to present to the jury a picture of the events relied upon. To substitute for such a picture a naked admission might have the effect to rob the evidence of much of its fair and legitimate weight. No exception lies to the admission of relevant evidence under such circumstances.

To return to the principal question. In the case of Thatcher v. Railroad Company, 85 Maine, 502, a case similar to the one now under consideration, this court said, respecting evidence tending to show other fires communicated by the locomotives used on the defendant’s railroad at different times about the same time that the plaintiff’s lumber was destroyed by fire and in the same vicinity: “ We think its competency, where the issue is whether the fire was communicated from a locomotive, is clearly established by courts of the highest authority. It tends to show the capacity of the inanimate thing to set fires along the road, and when a fire is discovered soon after a locomotive has passed and there is no evidence tending to show that it might have been caused in some other way, it authorizes the inference that it was caused by the locomotive.” The learned counsel for the defendant claims that the rule, so stated, is subject to modification, and that it is applicable only when the engine alleged to have caused the loss is not identified. He claims also, that the case of Thatcher v. Railroad Company itself recognizes such a modified rule. But that case merely recognizes that “ there are several authorities declaring that to be the rule,” and further says, that as “ neither the plaintiff nor any of his witnesses were able to identify the locomotive by name or number,” the evidence, when admitted, was “clearly within the modified rule.” So that even if the modified rule was the correct one, the defendant in that case had no good ground of complaint. This was not a recognition of the modified rule, as the law in this state.

The defendant’s counsel further contends that as the admissibility of the evidence in the Thatcher case was finally sustained on the ground that at the time it was offered the particular engine had not been identified, so that in any event, the case was brought within the modified rule claimed by the defendant, therefore the broader rule stated by the court,—and which we have quoted,— should be regarded as obiter dictum; and we are asked to reconsider the whole question.

It may well be doubted whether the evidence in this case on the part of the plaintiff, as to the identity of the engine, is sufficient to bring the case within the modified rule contended for. It is true, that during the trial, the defendant gave notice that it would fully identify the engine, but proof of identity from the defendant at that time would be of little service to the plaintiff to enable him

to investigate the character, or the previous history, as to fires, of that particular engine, if he was to be limited by the modified rule; and neither the notice that proof would be made, nor the fact that it was made subsequently by the defendant, can affect the question we are discussing. The engine was not identified, on the part of the plaintiff, by name or number, but only as the engine which drew the Dover and Dexter train that day. There was no mark upon it, known to the plaintiff, by which he could identify it elsewhere. He identified the train. Was he bound to know that the sáme engine hauled the Dover and Dexter train each day ? The defendant says this engine was No. 95. True. No. 95 is the same identical engine day after day, but the engine drawing the Dover and Dexter train may be identical day after day, and it may not be. It would be manifestly difficult, if not impossible, for an injured party who could identify an engine only by the train it drew on a particular occasion, to obtain any information which, within the modified rule, would be of any service to him, except such as the servants of the railroad company were willing to communicate. And the authorities seem to be to the same effect. Thatcher v. Railroad Company is in point. In Grand Trunk Railway v. Richardson, 91 U. S. 454, the trains were identified, but the court declared that the locomotives were not. So in Diamond v. No. Pac. Ry. Co., 6 Montana, 580, (29 Am. & Eng. Railroad Cases, 117) ; Piggott v. Eastern Counties Railway, 3 M. G. & S. 228; Koontz v. Oregon Ry., etc., Co., 20 Oregon, 3, (43 Am. & Eng. Railroad Cases, 11.) In many cases where the modified rule has been applied, the engines have been identified on the part of the plaintiff by name or number. Inman v. Elb. Air L. R. R. Co., 90 Ga. 663, (35 Am. St. Rep. 232); Ireland v. Cin., etc., R. R. Co., 79 Mich. 163; Phila., etc., R. R. Co. v. Schultz, 93 Pa. St. 341; Erie Railway Co. v. Decker, 78 Pa. St. 293. In Henderson v. Phila., etc., R. R. Co., 144 Pa. St. 461, (27 Am. St. Rep. 652) cited by defendant’s counsel, four trains had passed within an hour, the engine of one of which was identified by the plaintiff by number, the others not. It was unknown which engine, if any, caused the fire. The court gave the modified rule as applicable in case of unidentified engine, and the broader rule, as stated by Libbey, J., in Thatcher v. Railroad Company, as applicable in other cases, saying “Where the offending engine is not clearly or satisfactorily identified, it is competent for the plaintiff to prove that the defendant’s locomotives generally, or many of them, at or about the time of the occurrence, threw sparks of unusual size, and kindled numerous fires upon that part of their road, to sustain or strengthen the inference that the fire originated from the cause alleged.”

But without regard to the question of identity, upon a careful reexamination of the decided cases, we are satisfied that the rule stated in Thatcher v. Railroad Company is supported by reason, and by the great weight of authority. We think that when the question at issue is whether, as a matter of fact, the fire was caused by any locomotive, other fires caused by defendant’s locomotives, at about the same time and in the same vicinity, may be given in evidence for the purpose of showing the capacity of locomotive engines to set fires by the emission of sparks or the escape of coals. It is admissible as “ tending to prove the possibility, and a consequent probability, that some locomotive caused the fire,” language from Grand Trunk Railway v. Richardson, 91 U. S. 464, which has often been cited with approval. To show a possibility is the first logical step. That other engines of the same company, under the same general management, passing over the same track at the same grade, at about the same time, and surrounded by the same physical conditions, have scattered sparks or dropped coals so as to cause fires, appeals legitimately to the mind as showing that it was possible for the engine in question to do likewise. The testimony is illustrative of the character of a locomotive as such, with respect tp the emission of sparks or the dropping of coals. If the possibility be proved, other facts and circumstances may lead to a probability, and then to satisfactory proof. A simple enumeration of some of the authorities which sustain these views may be useful. Sheldon v. Hudson River R. R. Co., 14 N. Y. 218; Field v. N. Y. Cent. R. R. Co., 32 N. Y. 339 ; Diamond v. No. Pac. Ry. Co., 6 Mont. 580, (13 Pac. Rep. 367); (29 Am. & Eng. Railroad Cases, 117); Piggott v. Ea. Counties Ry. Co., 3 M. G. & S. 229; Koontz v. Ore. Ry., etc., Co., 20 Oregon, 3, (43 Am. & Eng. R. R. Cases, 11); Chicago, etc., Ry. Co. v. Gilbert, 52 Fed. Rep. 711; Campbell v. Mo. Pac. Ry. Co., 121 Mo. 340, (42 Am. St. Rep. 530); Smith v. Old Colony, etc., R. R. Co., 10 R. I. 22; Annapolis, etc., R. R. Co. v. Gantt, 39 Md. 124; 1 Thompson on Negligence, 163.

The defendant has reserved exceptions to the admissson of certain testimony as to other fires, which it claims does not fall even within the rule we have declared. In one instance a witness testified to seeing fire in a pile of sleepers beside the railroad track soon after a locomotive had passed. This was admissible, and if on cross-examination the witness testified that he didn’t know how the fire caught, or how long it had been burning; though “it couldn’t have been there a great while,” this does not render his testimony any the less admissible. The weight of it was for the jui7-

It is claimed, in regard to one witness who testified to seeing a fire soon after an engine passed, that his statements on cross-examination respecting the time he saw the fire were inconsistent with his first testimony; and in regard to another witness who testified to seeing certain fires two or three days after the day of the ice-house fire, that a witness for the defendant recollected these last fires as having occurred between two and three months later, and hence too remote in time to be fairly within the rule.

Whatever the facts may have been, these are questions which cannot be settled upon exceptions. The testimony in chief as given by the witnesses was admissible. It was for the jury to consider, in view of all the testimony, whether the witnesses were credible and reliable. The court cannot exclude the testimony of a witness because it is inconsistent or inaccurate.

In considering the motion for a new trial, we do not think it profitable to extend this opinion by an analysis of the evidence. Many of the salient points have been stated already. The defendant introduced much testimony respecting engine No. 95, and upon other matters, to show the improbability that the fire was caused by its engine. The evidence was wholly circumstantial. Giving to the circumstances their due weight, we cannot say that the jury were not authorized to conclude that the fire was communicated by the defendant’s locomotive.

Motion and exceptions overruled.

Cause remanded for hearing in damages, as stipulated by the parties.