Sims v. American Ice Co.

Briscoe, J., delivered the opinion of the Court. The appellee, a body corporate, brought this action against the appellants to recover damages for the destruction by fire of certain property situate on the east bank of the Susquehanna river, in proximity to a railroad operated by the appellants near Erenchtown, Cecil County, Maryland. ' The suit was instituted in the Circuit Court for Cecil County, but on suggestion of the defendants, the case was removed to the Circuit Court for Harford County. The second trial of the case resulted in a verdict for the plaintiff for the sum of $8,000, and from the judgment entered thereon the defendants have appealed. The record in the case presents sixteen bills of exceptions.

Fourteen of them relate to the rulings of the Court upon the evidence. The seventh exception was abandoned at the hearing, and the sixteenth was taken to the action of the Court in granting the plaintiff’s prayer, and in rejecting the defendants’ first, second, third, fourth, fifth, sixth and eleventh prayers, and in overruling the defendants’ exception to the plaintiff’s prayer. The defendants’ seventh, eighth, ninth and tenth prayers were granted and will be hereafter considered in the discussion of the propositions of law raised on the various exceptions set out in the record. It appears from the evidence that the appellee, at the time of .the fire, was the owner1 of an ice-house with certain appurtenant buildings, consisting of a stable, engine, boiler house, etc. The ice-storage house contained 6,600 tons of ice, worth $1.11 a ton. • ■ The appellants were engaged at the time of the fire in certain railroad construction work for the Pennsylvania Rail ⁷¹ road Company, and were operating what are called dinkey engines of about ten ton weight, hauling cars with dirt and other material over tracks laid for the purpose from a point on the P., B. and W. R It. to a point on the O. & P. D. R. R. These construction tracks were located about six to ten feet distant from the ice-house, and ran along the east front of the property of the appellee, between the Pennsylvania Railroad track and the ice-house.

The fire occurred about twenty-four minutes after ten o’clock, on the morning of June 16, 1905, and in the end of the ice-house next to the railroad. The ice-house measured 90 feet 7 inches from east to west by 160 feet 4 inches from north to south. It was 93 feet 3 inches from the northeast corner of the ice-house to the centre of the Baltimore! and Ohio Railroad (the bridge across the Susquehanna River) ; from the northwest corner of ice-house to centre line of Baltimore and Ohio Railroad, is 80 feet, and 64 feet from the northwest corner of the ice-house to the pier of the railroad company. The tracks of the Pennsylvania Railroad also passed along the east side of the ice-house.

The nearest of those tracks being about 20 feet from the ice-house. The declaration alleges that the property was destroyed bv fire caused by sparks thrown out by an engine which was operated by the defendants on a railroad in close proximity to the plaintiff’s ice-house. The negligence was charged to have consisted in the selection and equipment of the engines furnished and by the lack of ordinary care in the operation of the engines by the defendants’ employes: The first question presented by the record arises upon the first, second, third, fourth, fifth and sixth exceptions, and re^ lates to the admission of testimony of various witnesses to the effect that they had seen the dinkey engines, when working-near the plaintiff’s property, throw sparks shortly before the fire, and that these sparks had set fire to- combustible material near the dinkey tracks. The Court, we think, properly overruled the objections to this testimony and permitted it to be given to the jury.

In ⁷² Annapolis & Elkridge R. R. Co. v. Gannt, 39 Md. 115 , and in Green Ridge Railroad Co. v. Brinkman, 64 Md. 53 , this character of testimony was held to he admissible for the purpose of establishing the fact from which the jury may find negligence on the part of the defendant. Judge Bartol, in delivering the opinion of the Court in Gantt’s Case, Supra, said: 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. All of these exceptions present the same legal question and for the reasons stated we are clearly of opinion that the testimony was properly admitted. But apart from the admissibility of the testimony objected to in these exceptions, the witness Lewis had previously testified, without objection, that on the morning of the fire, as on previous mornings, he saw the dinkey engines of the defendants at work, and just before they got to the ice-houses they would open, exhaust and throw cinders ten or fifteen feet high out of stack, greater the blast more cinders would fly out of the stack, and his testimony was npt subsequently excluded.

The testimony contained in the eighth exception was properly rejected. The fact that engines on the Baltimore and Ohio Railroad,, while passing through different sections of Harford County, would throw out sparks and fire sufficient to set fire to rubbishi and other inflammable materials, could throw no light upon the question whether the fire complained of here was caused by the engines of the defendants. It did not tend to show negligence in the case under consideration and was no way connected with the fire in question. It was too remote and simply tended to prove that an engine was capable of setting fire to property near its railroad.

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