Annapolis & Elkridge Railroad v. Gantt

Bartol, C. J., delivered the opinion of the Court. This is a suit by the appellee to recover damages for the destruction of cord-wood and timber by fire, alleged to have been occasioned by the engines of the appellant. Four bills of exception were taken by the appellant, the first three present questions of evidence, and the fourth brings up for review the rulings of the Circuit Court upon the prayers. These will be considered in their order.

First Exception. — The plaintiff, who was sworn as a witness, having proved the destruction by fire on the 28th of April, 1869, of a quantity of cord-wood and growing timber on his land, contiguous to the railroad, on the north side; proved that the fire had commenced on the track of the road, in some dry grass at the end of the cross-ties, and had thence spread up the bank, through the bark, old stumps and litter, over the land ¹³⁵ condemned for the defendant’s road, and thence to the plaintiff’s wood and timber, situated, a part of it within forty feet of the track, and extending to the distance of about two hundred feet. That everything was very dry, and there was a high wind from the south-west; that from a distance south of the road, he saw the smoke about twenty minutes after the freight train passed up ; he also gave some evidence tending to prove the absence of other causes for the fire at that place, except the passage of the trains, to wit: “that there was no cutting in the woods that day, and no fire there, and that the cabin on the land occupied by laborers, was three hundred yards distant from the railroad ; and stated if it was set on fire by any train, it was the freight train that set „it on fire.” “The witness then stated in reply to questions of the plaintiff’s counsel, that he had observed the engines of the defendant about that time; that within a week before he had seen them scattering large sparks in passing, which were capable of setting fire to combustible articles along the road; and that about a week before, he had put out a fire in the leaves caused by these sparks ; but he could not say that he had ever seen any such sparks from the locomotive 11 Annapolis,’ which was the engine that was drawing the freight train on the morning of the fire.” Whereupon the defendant objected to the said questions, and to the said answers of the witness; but the Court overruled the objection, and admitted the evidence, and to this ruling, the defendant excepted. We entertain no doubt that this was competent and admissible evidence, both for the purpose of proving that the fire in question, was occasioned by the locomotives,* and as tending to prove negligence on the part of the defendant, in the construction and management of its engines. Evidence of this kind was held to be admissi ¹³⁶ ble in Piggott vs. The Eastern Counties Railway Co., 54 Eng.

C. L., 228. That was an action against- the railroad company for the destruction of the buildings and farming utensils on the plaintiff’s land, by fire alleged to be occasioned by the negligence of the defendants in the construction and management of their locomotives. “In order to show that the fire was probably caused by sparks or particles of ignited coke emitted from the funnel, or from the fire-box of the engine by which the train was being propelled; the plaintiff’s counsel proposed to ask a witness whether he had not on other occasions observed sparks or ignited matter to proceed from engines of the defendants, passing along the line adjoining the plaintiff’s farm.” The trial below was before' Alderson, B., who admitted the evidence, and the question being reserved, was heard and decided by Tindal, C. J., Coltman, Maulé and Cresswell, who all concurred in the. opinion that the evidence was admissible. Colt-mar, J., said, “It appears from the report of the learned Judge, that the evidence in question was admitted, not for the purpose of showing a general habit of negligence on the part of the company, but to show that the injury might have been caused in the way suggested. It appears to me that the jury might reasonably infer that the fire was occasioned by sparks from the engine, and that the fact of the buildings being fired by sparks emitted from defendants’ engine, established a “prima faeié case of negligence, which called upon them to show that they had adopted some precautions to guard against such accidents.” In Cleaveland vs. Grand Trunk R. R. Co., 42 Vermont, 499, evidence of the same kind was decided to be admissible; and in Sheldon vs. Hudson River R. R. Co., 14 N. Y., 218 , the Court of Appeals ruled-in the same way.

It has been argued by the appellants’ counsel, that the decision last cited was “over ¹³⁷ ruled ” in 29 Barbour, 226, when the same case afterwards came up before the Supreme Court. The case in 29 Barbour was before an inferior Court, and was ruled by three judges in the second judicial district; who were of course bound by the previous decision of the appellate Court. An examination of the cases will show that they are not in conflict. In 29 Barbour, the question of the admissibility of the evidence was not presented.

The Court held that the testimony there offered was not sufficient in law to prove negligence on the part of the defendant. The onus by the law of New York being on the plaintiff. Cinder the Code, Art. 77, sec. 2, it is not incumbent on the plaintiff in an action of this kind, to prove that the fire was caused by the defendant’s negligence; but the onus is cast on the defendant to disprove negligence on its part, or rather to show affirmatively that it has used reasonable care to prevent causing injury by fire from its engines. The law on this subject is laid down by this Court in Balto. & Susqh.

R. R. vs. Woodruff, 4 Md., 242 . In that case, a question of evidence arose, and the decision is relied on by the appellant’s counsel, as an authority in support of his objection to the testimony set out in this bill of exceptions. There the evidence offered was “that before the occurrence of the fires upon the plaintiff’s farm, fire had been communicated by the defendant’s engines, to property of other persons on said road, and that it had been burned in consequence of such fire.” The Court decided that such testimony was inadmissible, for the reasons stated on page 254; The question here presented is a very different one, and it seems to us that the ruling in Woodruff’s case has no application to this. There the evidence offered was that before the occurrence of the fire in question, other property had been set on fire by the locomotives of the defendant, no time was specified, it might have been, ¹³⁸ as the Court said, “six months before, or five years.” Besides, such testimony would simply tend to prove that a passing locomotive is capable of setting fire to property near the railway, but could throw no light upon the question whether the fire complained of was in fact caused by the locomotives, or tend to show the existence of negligence in the particular case under consideration.

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. The fact that the witness was unable to say that he had observed sparks, &c., from the engine “Annapolis” is no valid objection to admitting the testimony. The declaration does not allege that the fire was caused by that particular engine, and the statement by the witness of his belief, that it was the freight train which .caused the fire, did not preclude the plaintiff from arguing or the jury from finding that it was caused by some other locomotive. It appears by the testimony of the same witness that three trains had passed that morning before the fire, one of them, a passenger train, had passed up the road only a few minutes before the freight train, and may have caused the fire, although it was not discovered till after the “Annapolis” had passed.

The second exception, presents the same legal question, as the first, and for the reasons before stated we are of opinion that the testimony of the witness Bryan, to which objection was made by the defendant was properly admitted. No valid objection has been suggested to the testimony of Linthicum and Cole, contained in the third bill of exceptions. It was offered to rebut the evidence produced ¹³⁹ by the defendant, on the question whether its engines were of proper construction and in good repair at the time of the fire. They were examined as experts, and a reference to the testimony of the plaintiff and of Bryan will show that the hypothetical case upon which their opinion was asked, had been abundantly established by proof; or to speak more accurately, evidence had been given from which the jury might so find, which is all that the rule of law requires as a basis for the admission of the testimony of experts.

Upon the prayers contained in the fourth bill of exceptions, the first material question presented for our consideration, is whether the plaintiff had such ownership of the property, as to entitle him to maintain this suit. This question is raised by the second and third prayers of the defendant. It appears by the proof that the land was conveyed to the plaintiff in fee, by a deed from Williams and wife, on the 29th day of October, 1867, and on the same day, he executed to Alexander Randall Esq., a mortgage of the same, with other land, to secure the sum of $3000, payable in ten years from date, with the interest thereon, from the 1st day of January, 1868, payable annually. The appellant contends that the legal title to the land being in the mortgagee, the right of action was exclusively in him and not in the mortgagor, whose title being merely equitable, could give him no standing in a Court of law.

But in our opinion this is a mistaken view of the nature of the suit, which does not depend upon the ownership of the legal estate in the land. The Code, Art. 77, sec. 2, declares that the damage caused by such injury may be sued for and recovered u by the person injured by the fire.” It does not say