Malloy v. Grand Trunk Railway Co.

Brooke, J.

(after stating the facts). The first and second propositions argued by counsel for defendant are the following i

“(1) The trial judge erred in refusing to direct a verdict for defendant, for the reason that plaintiff failed to sustain the burden of proof of showing that the fire was set by one of defendant’s locomotives as alleged in the declaration.

“(2) Time in a case of this nature is material and must be proved as alleged.”

It is said in argument that this court has held in several cases that while it is not necessary for the plaintiff to show by eyewitnesses that the fire was set by a particular engine of defendant, it is necessary for the plaintiff to produce evidence which would reasonably lead an inquiring and unbiased mind to the conclusion that a cinder from a particular engine caused the fire. Clark v. Railway Co., 149 Mich. 400 (112 N. W. 1121, 12 Am. & Eng. Ann. Cas. 559); Hewitt v. Railway Co., 171 Mich. 211 (137 N. W. 66, 41 L. R. A. [N. S.] 635); Beach v. Railway Co., 190 Mich. 592 (157 N. W. 285).

Referring to the facts, we find that several witnesses testified that the fire started at or near the peak of’the roof of that portion of the barn situated nearest the railroad track. It also appears that none of the witnesses who saw the fire saw any person emerge from the barn at or after the time of its discovery. Under these conditions we do not think it can be said, as a matter of law, there was no testimony which would reasonably lead “an inquiring and unbiased mind to the conclusion that a cinder from a particular engine caused the fire.”

But it is said that the evidence is uncontradicted as to the time of the fire, which plaintiff’s witnesses fixed between 8 and 9 o’clock, and a witness on behalf of defendant with certainty at 8:30 o’clock. It is further urged that, inasmuch as the passenger train did not pass the barn until after 9:15 a. m., and as that train was the only train which passed the barn, it was a physical impossibility that it should have emitted the spark which caused the fire. In this argument defendant overlooks the fact that several of the witnesses for plaintiff testified positively that the fire was discovered a few minutes after the passage of the train. The fact that they fixed the time of its passage at between 8 and 9 o’clock instead of 15 or 30 minutes later is, we think, of no very great consequence. Defendant claims that plaintiff is bound to allege a specific time in his declaration, and that such time should be proved as alleged, citing Hewitt v. Railway Co., 171 Mich. 211 (137 N. W. 66, 41 L. R. A. [N. S.] 635). An examination of that case will show that it is not controlling. That the declaration must allege a specific time, and must prove it as alleged, is true, but this rule must be applied with reasonable limitation. The purpose of the pleading is to enable the defendant to prepare his defense. A variation of an hour between the averment of a declaration and the proofs is not fatal, particularly where, as in the case at bar, the defendant, from the averment, is able to meet the proofs made by the plaintiff thereunder.-

.It is the claim of defendant that, having shown by reputable and uncontroverted evidence that the spark arrester in the engine in question, as well as all its other appliances, was in good condition, and such as good railroading requires under the statute, and, further, that the engine at the time it passed the barn was properly managed, a verdict should have been directed in its favor, under the authority of Dolph v. Railroad Co., 149 Mich. 278 (112 N. W. 981); Clark v. Railway Co., 149 Mich. 400 (112 N. W. 1121, 12 Am. & Eng. Ann. Cas. 559); Penn. Fire Ins. Co. v. Railroad Co., 184 Mich. 375 (151 N. W. 578). In the Dolph Case the building burned was located 80 feet from the track, ,and it was there said:

“And it was a conceded fact that all properly constructed engines will sometimes emit fire”

—and it was held that the statute does not make it an. issue of fact that must, under all circumstances, be left to the jury. In the case at bar we have testimony to the effect that an engine in good repair and properly managed will not emit sparks containing sufficient vitality to cause fire at a distance of more than from 50 to 80 feet. We have further testimony as follows:

“Q. The fact that a spark carries more than 50 to 60 feet means what with reference to the condition of the engine?

“A. Well, it would mean that if the conditions of the ground where they light, that they would be liable to set something on fire.

“Q. You say a spark will carry 65 feet in an engine in good order. If it carries 200 feet, what does that show with reference to the'netting in the engine?

“A. If it carried 250 feet, it would have to be some help to carry it that far.

“Q. There would have to be a hole in the netting?

“A. There would have to be some wind to carry it that distance.

“Q. With the netting or fire-arresting devices defective, would there be any limit to the distance that the fire would carry?

“A. I don’t think there would.

“Q. That is, on an engine with defective devices for arresting sparks the sparks might carry how far?

“A. That is hard to tell; I couldn’t say.

“Q. State whether or not they carry much farther than 80 feet.

“A. Yes; they would.”

And also the following:

“Q. If an engine has a defective screen or defective spark-arresting device, state whether or not there is any limit to the distance that the sparks will fly, any reasonable limit.

“A. Well, as far as a limit is concerned, I could not place a limit upon the distance they would go. They may carry under a heavy wind farther than — farther at different times.

“Q. State whether or not they would carry a distance of 200 feet.

“A. With a defective spark-arresting device in the front end of a locomotive I should say that they would carry 200 feet with a strong wind, a medium wind.

“Q. Would it carry that far and set a fire?

“A. I should think so. I have known them to do so.

“Q. If an engine had holes in the screen, state whether or not they would carry as far as 250 feet.

“A. With a heavy wind I should judge they would.”

We are unable to say in^this case, as was said in the Dolph Case, that no question of fact was presented for the determination of the jury as to whether the engine and its appliances were in proper condition. The case upon this point falls within the reasoning of the Pennsylvania Fire Ins. Co. v. Railroad Co., 184 Mich. 375 (151 N. W. 578), and the cases therein cited.

The third and last point argued by counsel for defendant is that the court erred in denying a‘motion for new trial, on the ground that' the verdict was against the great weight of evidence. While the evidence in the case, both upon the question of setting the fire and the condition of the engine, is such as to raise a question of fact for the determination of the jury, we are of opinion that the verdict should have been set aside by the trial judge because it was contrary to the great weight of evidence. We are led to this conclusion by a consideration of the following facts: The barn was located at a comparatively great distance from the railway track; there had been frequent showers the day prior to the fire; no other fires had been set in the vicinity, and the engine in question had never before been charged with setting fire. The evidence as to the state of repair and condition of the engine on the morning the fire was set was very full and convincing.

From a careful examination of the entire record, we have concluded that a motion for a new trial should have been granted. Brown v. Railroad Co., 183 Mich. 574 (149 N. W. 1031).

Judgment reversed.

Stone, C. J., and Kuhn, Steere, and Person, JJ., concurred with Brooke, J. Moore, J. I think the case should be affirmed. Ostrander and Bird, JJ., concurred with Moore, J.