Norfolk & Western Railway Co. v. Spates , 122 Va. 69 ( 1917 )

Sims, J.,

after making the foregoing statement delivered the following opinion of the court:

We will consider and pass upon the questions raised by the several assignments of error in their order as stated below:

1. Was it error to admit evidence for the plaintiff that other engines of the railroad company at other times in the past had thrown out sparks and cinders and in some cases had set out fires at and near the locality of the buildings of the plaintiff, for damages for the burning of- which this action was brought?

Before the Featherston act the law required a plaintiff, in order to recover damages against a railroad company caused by fire, to prove two things, namely, (1) That the railroad company in fact set out the fire; and (2) that the setting out of the fire was due to negligence of the railroad company.

In that state of the law, by a number of decisions of this court, it became settled, prior to the Featherston act, that, although the proof might show that a fire was set out by a railroad company, there could be no recovery therefor if the evidence failed to show the existence of negligence on the part of the railway company; and it was held as a general rule that the evidence failed to show the existence of such negligence, if it appeared therefrom (a) that the engine from which the fire originated was in good repair, in charge of a competent and experienced engineman, or locomotive engineer, that it was equipped with the best mechanical appliances in known and practical use for preventing the escape of sparks; and was not run in a negligent manner so as to unnecessarily throw out sparks and coals or cinders; and (where the fire originated on the right of way of the railroad company) (b) that the defendant exercised reasonable care to keep such right of way clear of combustible matter liable to ignition by sparks or coals discharged from passing engines and to communicate fire to the property of others. White v. N. Y. P. & N. R. Co., 99 Va. 357; 38 S. E. 180; N. & W. Railway Co. v. Briggs, 103 Va. 105; 48 S. E. 521; Atlantic, etc., R. Co. v. Watkins, 104 Va. 154, 51 S. E. 172; Phillips v. Railway Co., 109 Va. 437, 63 S. E. 998. The rule as to the effect of evidence showing that the engine was in good repair, would of course, prior to the Featherston act, have applied to the dropping of coals or cinders and would have negatived the existence of negligence in that regard and hence of liability for damages' for fire caused thereby.

Therefore, -prior to the Featherston act, the ultimate question of fact in issue in railroad fire damage cases was whether the fire was negligently set out by the railroad company. Upon that issue it was necessarily held that “after the plaintiff has identified with certainty the engine alleged to have communicated the fire complained of, it is not admissible to introduce evidence of other fires communicated along the company’s right of way without first showing -that the other fires were set out from the engine in question.” This was because, in the then state of the lav/, negligence being an essential ingredient to be found to exist in a case before any liability of the railroad company could arise, when the injury complained of was shown to have been caused, or could only have been caused by a known and identified engine, the evidence had necessarily to be confined to the condition, management and practical operation of that engine, in order to ascertain whether the railroad company was guilty of negligence with respect thereto. N. & W. Railway Co. v. Briggs, supra. Evidence which might have been relevant as tending to prove that the fire was in fact set out by the -railway company, consisting of evidence of the frequency of fifes set out by the engines of such company indiscriminately, clearly could not be relevant to the issue in such state of the law, which was whether there was negligence in the condition or management of the identified engine. The other engines of the railroad company may have set out. fires, whether because defective in condition or negligently operated, or not, and the identified engine may have set out the fire in question, but if the latter was not defective in condition or negligently operated there was no liability upon the defendant in such state of the law. That is to say, the rule in N. & W. R. Co. v. Briggs, supra, above referred to, was established when and because in the then state of the law negligence was an essential ingredient and, indeed, was the gist of the action in railroad fire damage cases, and not merely the fact of the setting out of the fire. Since the Featherston act the issue in such cases does not include negligence as an essential ingredient. Such ingredient consists only of the existence of the fact of the setting out of the fire by the railroad company by sparks or coals (cinders) dropped or thrown from some one or more of its engines, and that, under such act, is the ultimate fact in issue; and all evidence whether circumstantial or direct, which tends to prove that issue, is admissible, and the aforesaid rule in the case of N. & W. Ry. Co. v. Briggs, supra, is no longer applicable.

The first assignment of error raising the question we have under consideration, is based on the aforesaid, rule in the case of N. & W. Ry. Co. v. Briggs, supra. That rule not being applicable since the Featherston act, our conclusion necessarily is that such assignment of error is not well taken.

The ultimate issue cf fact under the Featherston act being the single question whether the fire was set out or originated from sparks or coals (cinders), singular or plural, thrown or dropped from an engine or engines of the railroad company, manifestly, as above noted, any evidence tending to prove such fact is admissible. Evidence to the effect that the engines of the railroad company indiscriminately, without exception (which would of course prima facie include the identified engines aforesaid), throw spares at the locality in question, clearly was evidence tending to sustain said issue in behalf of the plaintiff and hence was admissible. It was not conclusive evidence in itself, but admissible to be weighed and considered by the jury in cont ection with all the other evidence in the case.

2. Was it error in the court, in its first ruling as to the a imissibility of evidence of sparks and cinders being thrown out and fires started, to have said: “I think it admissible but not on the ground of showing that the engines were defective, but showing that at that point the railroad company had thrown out fire on other occasions and therefore” that it is possible for it to have thrown out fire at this time?

The objection to this ruling of the appellant is to the use of the word possible therein. It is urged that this being the first ruling of the court on the admissibility of such evidence, although the court did in later rulings on the same subject substitute the word “liable” for “possible,” the first ruling was calculated, and, as appellant contends, did leave the impression on the minds of the jury, that if the evidence showed a bare possibility that the two engines in question threw the sparks, the jury might consider the evidence as sufficient to warrant their finding in favor of the plaintiff, whereas the true rule is that the evidence must be sufficient to show such fact by a clear preponderance before the jury had the right to consider it in favor of the plaintiff.

It is admitted that the trial court correctly instructed the jury on the point under consideration, by one of the instructions given after the evidence was all in, but it is insisted that this could and did not remove the erroneous impression aforesaid.

In the view we take of it, the objection to this ruling of the court was not well taken. It seems to us that the use of the word possible was not unfavorable to the appellant. What the court said in the ruling in question had not the remotest reference to the matter of what it was necessary for the plaintiff to prove in order to recover. The court ruled the evidence admissible on the issue as to whether the railroad company in fact set out the fire, as consisting of evidence of circumstances tending to prove that fact, to the extent of showing that such fact was possible. The court did not say or indicate to the jury that if the plaintiff stopped there she could recover. It was a step in her proof, and certainly a necessary step to establish that it was at least possible for the fire to have been set out by the railroad company, before she could ask that her other evidence be considered on the issue before the court. The use of the word possible by the learned trial judge was indeed but an extremely careful and guarded manner of statement, lest he should create an impression adverse to the appellant; and was less likely to have prejudiced the railroad company, than the use of the word “liable” employed later on in connection with the same ruling as to the admission of similar evidence, to which no objection is urged. The use of the word “liable” went farther than “possible” in the statement of what might be the effect or weight of the evidence ruled upon, and manifestly the use of the word “possible” in the first instance by the learned trial judge, was as above indicated, out of abundant precaution lest he create an impression on the minds of the jury that they might consider such evidence as going beyond the step of showing that the throwing out of fire by the engines at the point in question was possible.'

However, and further, it seems clear to us, in view of the admittedly correct instruction given by the trial court on this point, that it does not affirmatively appear from the record that the jury was misled by this ruling or would or could, in accordance with the evidence, have rendered a different verdict from what they did, and hence the error in such ruling, if there was one, was harmless. Standard Paint Co. v. Vietor, 120 Va. 595, 91 S. E. 752.

Omitting reference, to the instructions which involve the question first above considered and passed upon, the questions raised by the assignment of error based upon the action of the trial court in giving and refusing instructions will now.be considered.

3. Was instruction No. 3, given at the instance of the plaintiff, contradictory in terms, or calculated to mislead the jury into believing therefrom that it was instructed that the railroad company was liable, unless it appeared from the evidence that there was no other p-robable cause for the fire?

Instruction No. 3 referred to is as follows:

“3. (Given.) The court further instructs the jury that the burden of proof is upon the plaintiff to show by clear and affirmative testimony that the defendant set out the fire, the court telling the jury that it is not sufficient for the plaintiff to show that it was possible for the defendant to have started the fire but it must appear from the evidence that there was no other probable cause for the fire.”

When read in connection with instruction No. 4, which was given by the trial court, it is clear that instruction No. 3 is not amenable to the objections urged against.it which are indicated in the question under consideration. Instruction No. 4 is as follows:

“4. (Given.) The court instructs the jury that before the plaintiff can recover in this case the evidence must be such as to show more than a mere probability'that the property was destroyed by sparks of fire or cinders set out by an engine of defendant company, and it is not necessary to prove it’beyond- a reasonable doubt. If it is shown affirma» tiv-ely by a clear preponderance of the evidence that the fire was caused by sparks or coals or cinders emitted from an engine of defendant, the proof is sufficient.”

Hence this question must be answered in the negative.

4. Was it error in the trial court to refuse instruction A. offered by the railroad company?

Instruction A. referred to is as follows: “A. (Refused, except as modified in instruction given). “The court in* structs the jury that the burden of proving that the fire complained of in the plaintiff’s declaration was caused by the engine or engines of defendant company is on the plaintiff and must be proven by a preponderance of all the testimony to the satisfaction of the jury. It is not sufficient for the plaintiff to show a probability that the fire was so0 caused, nor can the jury presume from the happening of the fire that it was caused by the defendant company’s engine or engines. In other words, the court means to tell the jury that it is incumbent upon the plaintiff to show how and why the fire occurred, and the plaintiff cannot leave the jury to the determination of the question by conjecture, guess or random judgment or upon mere supposition.”

The provisions of this instruction were substantially ana fully covered by instructions Nos. 1, 3 and 4 given by the trial court. Instructions Nos. 3 and 4 are above quoted. Instruction No. 1 was as follows:

“1.(Given.) The court instructs the jury if they believe from the evidence that the plaintiff in this case sustained damage from a fire occasioned by sparks, cinders or coals emitted or thrown from an engine of defendant, as alleged in the declaration, and that the defendant was a railroad company at the time of the said fire, then the plaintiff is entitled to recover of the defendant the damage so sustained at the date of the fire; and the plaintiff would be entitled to recover such damage without any reference to any insurance collected by the plaintiff.”

Counsel for the railroad company say in this connection:

“We invoke the principle again that when an instruction prepared by counsel for either party states a correct principle of law, then the party offering it is entitled to have it given in the language employed in it.” This principle is subject to the well-settled qualification that when the jury have been fully and sufficiently instructed on a given point or points in a case, it is not error to refuse other instructions, though correct; on the same point or points. Luck, etc., Co. v. Russell County, 115 Va. 335, 79 S. E. 393; Bowman v. First Nat’l Bank, 115 Va. 463, 80 S. E. 95; Ney v. Wrenn, 117 Va. 85, 99, 84 S. E. 1; Eastern Motor Co. v. Apperson-Lee Co., 117 Vá. 495, 85 S. E. 479; Smith v. Stanley, 114 Va. 117, 130, 75 S. E. 742; Cutchin v. Roanoke, 113 Va. 452, 74 S. E. 403. As. stated by this court in Wygal v. Wilder, 117 Va. 896, 901, 86 S. E. 97: “The practice of diminishing instead of multiplying instructions unnecessarily is rather to be commended than condemned.”

In regard to the following named provision in said instruction A., to-wit, “Nor can the jury presume from the happening of the fire that it was caused by the defendant company’s engine or engines,” it should be said that this unquestionably enunciated a correct proposition of law. It could have had no helpful effect, however, if such an instruction had been expressly given in the instant case. It does not appear that the jury were asked in such case to apply such a presumption. On the contrary instructions Nos. 1, 3 and 4 clearly instructed them as to the law which negatived any such presumption. Moreover the instant case was not one in which the plaintiff was left by the evidence to rely upon such a presumption. She had other evidence in her behalf on the point. Hence the giving of such an instruction in such a case would have been confusing and misleading to the jury.

Therefore there.was no error in the refusal of the trial court to give such instruction.

5. Was it error in the trial court to refuse instruction B. offered by the railroad company?

Instruction B. referred to is as follows: “B. (Refused as embraced in instruction given.) The court further instructs the jury that if it believes from the evidence that the fire complained of may have resulted from one of two causes, for one of which defendant is responsible, but not for the other, the plaintiff cannot recover, nor can the plaintiff recover if it is just as probable that the fire was •caused by the one as by the other cause.”

There was no evidence in the case to support this instruction. There were only two causes (cinder or spark) for, and two ways of the setting out of, the fire, as it in fact occurred— (by origin on the right of way of the railway company or beyond it) as disclosed by the evidence (as above set forth in the summary of facts). For any and all of these the railroad company was responsible and liable in damages under the Featherston act, if the fire occurred in any or all of such ways. The rule invoked by the instruction, while well settled, has, therefore, no application to the instant case.

The Instruction under consideration was evidently offered under the assumption that the evidence tended to show that there was still another cause for the fire, namely, that it was caused by the carelessness of boys playing cards in the buildings. There is no such fact testified to or shown in evidence, however, in the case. The only reference to any such matter is in the testimony of the husband of the plaintiff. He says that when he saw the fire “I started down to Investigate thinking some boys might be playing cards.” But what he saw on his arrival at the fire and the other evidence in the case entirely excluded any such hypothesis being supported by or being consistent with the evidence.

Hence this instruction was also properly refused.

6. Was it error in the trial court to refuse instruction C. offered by the railroad company?

Instruction C. referred to is as follows: “C. (Refused as covered so far ás proper by instructions given.) The court further instructs the jury that if the plaintiff fails to establish by affirmative proof sufficient to satisfy reasonable and well-balanced minds any one fact necessary to prove that the fire was set out by the defendant company, they shall find for the defendant.”

The provisions of this instruction were substantially and fully covered by other instructions given by the trial court. What is said above on this subject in connection with instruction A., refused by the trial court, is deemed equally applicable, mutatis mutandis, to the instruction now under consideration.

Hence there was no error in the refusal of this instruction.

We come now to the question raised by the only remaining assignment of error which we have not passed upon, namely:

7. Was there error in the refusal of the trial court to set aside the verdict of the jury and grant a new trial?

The above statement of evidence deemed to be material, and the above summary of facts, sufficiently answer this question in the negative, and a discussion thereof, it is believed, would needlessly prolong this opinion.

For the foregoing reasons we find no error in the judgment complained of and it will be affirmed.

Affirmed.