Susquehanna Transmission Co. v. Murphy

Burke, J., delivered the opinion of the Court. This is an appeal by the defendant below from a judgment of five hundred dollars entered against it in the Circuit Court for Baltimore County. The defendant is a corporation, and owns a right of way about 100 feet wide through Harford and Baltimore Counties to the City of Baltimore. Upon this right of way are erected towers to which wires and other mechanical devices are attached, and used for the transmission of electric power generated by a power plant located at McCall's Ferry in the State of Pennsylvania.

The plaintiffs are the owners of land situated in Harford County at a distance of about 2,000 feet from the defendant’s right of way. Upon this land was a tract of timber enclosed by a ³⁴² fence. Between their property and the defendant’s right of way, at the location spoken of in the testimony, there is located the land of Mrs. Streett and Albert Berry, which land adjoins the plaintiff’s property. Then intervenes some land, which at the time of the injury complained of, was occupied by a man named Ayres.

A part of this land—adjoining that of Streett and Berry, was planted in corn, and the balance, covered with grass and weeds, was contiguous to what is spoken of by the witnesses as Campbell’s and Slade’s woods. These woods lay along and near the defendant’s right of way. In Slade’s woods there was a pile of rails between three and four hundred in number and some posts which belonged to a man named Harmon. The evidence shows that Slade’s woods was very much elevated above the plaintiff’s land.

The declaration alleged “that on or about the 2nd day of May, in the year 1914, the servants, agents and employees of the defendant negligently set fire to dried grass and weeds and bushes that were negligently suffered by the defendant to be and remain on its said right of way, for the purpose of burning the same, at a time when a high wind was blowing, and that the fire so negligently started on said right of way was thence communicated to the plaintiffs’ timber and fencing whereby and in consequence thereof a large part of said timber was burnt and injured.” The defendant pleaded the general issue pleas, and the case was tried before the Court and a jury upon the issues joined upon these pleas. During the progress of the trial the defendant reserved 23 exceptions. Nineteen of these were taken to the rulings of the Court upon questions of evidence, one to the rulings on the prayers, and three to certain statements made by the counsel for the plaintiffs in their arguments before the jury. A motion for a new trial was made by the defendant which the Court denied, and whilst the counsel for the defendant complains that the verdict was grossly excessive, he concedes that this Court has no power to grant him relief on that ³⁴³ ground.

Our power is limited to an examination of the record and a decision upon the question as to whether the Court below committed any injurious error of law in any of its rulings. Before considering the exceptions, it may be well to state some matters about which there does not -appear to be any dispute. It is shown that the plaintiffs were the owners of the property mentioned in the declaration, and that on May 2nd, 1914, a fire broke out in the plaintiffs’ woods, burned over about five acres of their land, injured the timber thereon, and destroyed a large portion of the fencing which enclosed the tract. It is also shown that about- noon on that day James O. Parker, the line superintendent of the defendant, directed Caesar Hawkins and Walter Winder, two men in the employ of the defendant and over whom Parker had authority, to gather into piles and burn certain debris which was laying upon the right of way of the defendant and near to Campbell’s- and Slade’s woods.

These men gathered up the debris into piles, about three feet high and five feet wide and about five feet apart, along the right of way and set them on fire. The fire from these burning piles was communicated first to Campbell’s and then to Slade’s woods, and it destroyed the rails of Harmon, to which we have referred, and for which loss the defendant compensated him. The disputed questions of fact- were: First, as- to the character of the timber on the plaintiffs’ land, the extent of the injury to the timber, and its value before and after the fire; and secondly, the extent of the fire in Slade’s woods, the direction and velocity of the wind at the time of the fire; and thirdly, a question of law, raised by the defendant’s first, second and third prayers, which sought to- withdraw the case from the jury, as- to whether there was any testimony offered legally sufficient to show any negligence on the part of the defendant, or any legal connection between the fire started on the defendant’s right of way and the injury suffered by the plaintiffs. As negligence is the basis of the action, it was essential for the plaintiffs to offer evidence legally sufficient ³⁴⁴ to show the negligence alleged and- that the injuries sued for bore the relation of cause and effect.

The concurrence of both and the nexus between them must be shown to exist to constitute a right to recover. Benedick v. Potts, 88 Md. 55 . It is not the province of this Court to decide any such question of fact. That was the exclusive province of the jury.

Eight witnesses were called on behalf of the plaintiffs, viz: W. Elijah' Somerville, a surveyor, Thomas E. Murphy, James G. Parker, Cornelius F. Murphy, Albert Berry, Albert Berry, Jr., Edward L. Oldfield and Benjamin Garber. A brief synopsis of the material portions of the evidence of these witnesses bearing upon the questions presented by this appeal is here gpvin: • Mr. Somerville made a plat of the location of the transmission line with reference to the property of the plaintiffs and made measurements of the distance from the transmission line to the Murphy property and of the tract burned. He said the fire extended over a little more than five and a half acres of the timber land, and that the distance from Slade’s woods to the Berry and Streett land, which as we have said adjoined the Murphy land, was 1,968 feet, and that the distance from the Slade land where this line of 1968 feet was measured to the defendant’s right of way -was probably about 125 feet. He testified that the land slopes towards the Streett property, and that at about the center of the Slade land the elevation is from 50 to 75 feet above the Streett tract. • ■ Thomas E'.

Murphy testified that he first noticed the fire about two o’clock P. M.; that it was “a terrible windy day”; “the wind sounded like a train of cars, it was blowing from the west”; that the fire burned more than five acres of his woodland; that he saw the smoke coming from the Slade woods,—coming from the west, direct to his property;- that the fence on the Berry and Streett lines was entirely destroyed; that the timber on his tract was principally oak, white oak, and the very, best of chestnut; thickly wooded, a splendid piece of timber; that the fire continued in his woods until six o’clock, and killed the timber and the young growth; ³⁴⁵ that the timber was large and marketable. Tie testified that he owned about four hundred acres of land in that neighborhood, and had been engaged in farming for a number of years, and that he had had experience in buying and selling timber, and timber land for over two years; “in Harford County we bought 200 acres in the northern part of the county near what is known as Carea and we bought 35 acres near the Rocks recently and we have been buying telegraph poles in all the northern part of the country. He had been in the timber business a little over three years. Prior to that he had bought several pieces of land for himself with timber on it.

That he made his own estimate of the lumber on a tract. They bought the timber for marketing it, cutting it into different things, railroad cross-ties, crossing planks, telegraph poles, bridge timber, wagon wood, whatever we can market it in best. They furnish the county with considerable bridge timber; in making the purchases of timber they bought, just the timber, the wood leave we call it. He inspected it before be bought it.” He further said he knew of sales of woodland in that vicinity; that he knew of sales there; that he had bought the timber on the Wright property, which was about eight miles, from his own; that he was familiar with the prices of timber', and that he had been engaged in the timber business for the last two or three years; that the day of the fire was a windy day and very dry, and had been dry for several days.

Tames G. Parker, the line superintendent was called by the plaintiffs and testified that he ordered the men, Hawkins and Winder to burn the debris, hut was not present when the fire started in the Campbell and Slade woods; that he gave the order about 11 or 11 :30 A. M. and that at that time he said the wind was blowing from the northeast. Cornelius F. Murphy testified that he recalled the fire which occurred on May 2, 1914; ho first noticed it about 1:80 or 2 o’clock. That it was a clear day, but very windy; the wind was blowing at a high gale; it. was blowing a gale from Slade’s woods to the plaintiffs’ woods; he could see the ³⁴⁶ smoke. The Slade land was higher than his own.

His evidence as to the kind and character, quantity and marketability of the timber on the tract burned was corroborative of Thomas F. Murphy. He said he had been engaged in the timber business; that he bought tracts, cut off the timber, operated a sawmill, and sold the lumber; that he had bought timber rights in the upper section of Harford County, and that the effect of the fire on the timber in question was to destroy it; that it killed the trees. Albert Berry said, he was at his