RAILROAD LAW — NEW TRIAL.

[Wood Circuit Court,

April, 1896.]

Haynes, Scribner and King, JJ.

#### Martz v. The C., H. & D. Ry.

1. Striking prom Petition Certain Aeeegations.

It is not error for a court to strike from tbe petition allegations amounting to a mere legal conclusion; also an immaterial allegation.

*21*Receiving Testimony oe One’s Experience and Observation.

A person wbo has been employed and working as an engineer on a locomotive engine for several years, is sufficiently qualified to testify as to his experience and. observation as to the escape of sparks from locomotives.

3. Evidence oe a Generae Nature.

In an action for damages caused by fire, alleged to have been caused by sparks •which were emitted from defendant’s locomotive, the plaintiff may offer testimony showing the condition of the locomotives on defendant’s road, and he may show that the engines of the company generally emitted sparks as they passed along the line of the railroad company near the vicinity where the fire in question was started.

4 Reeusae oe Court To Give a Certain Charge:

In an action arising from fire alleged to have been caused by the emitting of sparks from a railroad locomotive, it is error for the court to refuse and charge the jury, requested by plaintiff, that if the jury found that the property of the plaintiff was ignited from a fire originating upon the lands of the railroad company, which according to 91 O. I*, 187, make it *prima facie*evidence that such fire was caused by operating such railroad.

5. Verdict Against the Weight oe Evidence.

Where the evidence of plaintiff goes to show that the fire originated upon the lands of the railroad company, which the statute makes *prima facie*evidence in that it was caused by the operation of the railroad, and is not disproved by the company, should have entitled the plaintiff to recover for his damage.

King, J.

(orally.)

The plaintiff in error brought his action in the court of common pleas of Wood county against the railroad to recover damages caused by the burning of his mill from a fire alleged to have been started through the negligence of the defendant. The trial in the common pleas resulted in a verdict in favor of the defendant, and plaintiff aéks to have the judgment in that court reversed. The errors claimed are these:

1. The court erred in striking from the petition certain words.

2. The court erred in ruling out evidence offered by the plaintiff.

3. In refusing to give certain requests asked by the plaintiff.

4. Erred in its charge.

5. The claim is made that the verdict is against the weight of the evidence.

There are exceptions to the admission of some testimony offered by the defendant, but we find no error in the ruling of the court.

First: The court, upon motion, struck from the petition these words: “And that said company is responsible for damages and injuries occasioned thereby to the property along the line of said railroad.”

This allegation amounts to a legal conclusion, and was properly stricken out. Also these words:

> 1 ‘And negligently and carelessly omitted to keep its right of way-free and clear of dry and combustible material.”

*452The statute provides that a railroad company shall keep its right of way free and clear from weeds and high grass, decayed timber and combustible material which is liable to take fire. The whole allegation in the petition, a part of which only was stricken out, reads as follows:

> “And carelessly omitted to keep its right of way clear and free from dry and combustible material, but negligently permitted the said grain elevator with its contents to be and remain on the same near and within seventy-five feet of plaintiff’s grist mill. ’ ’ It was claimed in the petition and on the trial that the fire originated in an elevator. Now, if that elevator was the combustible material complained of, and which the railroad company allowed to remain upon its right of way, that, we think, is not that kind of material referred to in the statute, and so the allegation that the company permitted dry and combustible material upon its right of way, is not material and should have been stricken out.

Second: Plaintiff called a witness named Graham, who testified that he had been nine years employed and working as an engineer, and two years as a fireman on a locomotive engine, and in the employ of the L. S. & M. S. Railway. That he had observed the escape of sparks from the locomotive stacks and knew the character and different kinds of spark-arresters that during that period had been ordinarily used. Plaintiff then asked him this question:

> “You may state whether a locomotive that is properly constructed, properly managed and has a proper spark-arrester in good order, will throw out sparks that will set fire to a pile of corn cobs forty to fifty feet away?”

¡ This was objected to and the objection was overruled and witness answered: “The sparks will go out before they strike the ground if an engine is properly constructed. It will not throw sparks ten feet away from the track.”

Witness is next asked whether such a locomotive, so equipped and in good order would throw sparks large enough to burn a man who was three to five car lengths away from the smoke stack? Witness answered no; that he.never knew of one that had the cene and netting in good shape. Witness was next cross-examined and inquired of -when he left the employ of the Lake Shore company and he answered in 1877. That his business since 1877 had been running a saw mill. Defendant then moved the court to strike from the jury the testimony of the witness on the ground that he was unqualified. This motion was sustained and plaintiff excepted.

We failed to discover any good reason why the witness was not qualified to testify to his experience and observation as to the escape of sparks from locomotives. If the witness had not been recently employed where he could observe the matters in question or the conditions had in the years of his non-employment been changed, this might effect the weight of his testimony. We think the character of it was such that experience and observation would fit him to testify, although he had not in recent years been engaged in a calling that would continue or add to his knowledge on such a subject.

One Clark was next called, who testified that he had been engaged as a locomotive engineer up to a recent period and was asked whether a locomotive that is properly constructed and properly managed and has a proper spark-arrester, in good order will throw but sparks that will set fire *to cc*wood pile a distance of thirty feet or more from the right of *453way. That question is objected to and sustained Another question follows, relating to the setting fire of a hay stack the same distance away from the right of way, and then whether a spark emitted from such a locomotive would set fire to grass fifty feet from the railroad track. Objections to this were sustained and the plaintiff excepted, plaintiff stating that he expected to show that an engine properly constructed and properly managed and with a proper spark-arrester will not throw fire a distance off thirty feet and will not set fire to a wood pile, hay stack or grass the distance named.

We are of opinion that the witness should have been permitted to answer these questions. We think the experience of the witness was of a kind upon this subject that enabled him to give an opinion 'and which he might give. That upon this subject a man of ordinary affairs would not have that knowledge, nor was it _ such a question that all the facts could be placed before the jury to enable them to form an opinion irrespective of that of the witness. Locomotive engineers, by reason of their employment, cannot avoid becoming acquainted with and acquiring the kind of knowledge called for in these questions, and we think the answer should have been permitted.

Another witness, Kretzinger, called by the plaintiff, testified that he lived 'in the neighborhood where this fire occurred, and was asked whether shortly prior to the, date of the fire he saw any other fires along or adjacent to the right of way of the defendant company, and he answered that he had. He was asked to state whether they were about that time. This was objected to and an answer permitted. He said that while he was walking along and during the dry months he frequently had seen and put out fires that occurred along the right of way. Then followed a motion to strike this answer from the jury, and this was sustained, to which plaintiff excepted. He then asked the witness if this was prior to July 29, 1894, and he answered that was as near as he could locate the time, somewhere in July. The question was then asked whether during the month of July, shortly before July 29th, the date of the fire, witness saw any fires along or adjacent to the track of this line of railway. . This was objected to and sustained and plaintiff excepted.

We may assume from all that is contained on that page of the record, that the witness would have answered as he answered the previous question, which answer was ruled out. Up to this period of the trial of the case the plaintiff had not identified any particular engine as the cause of the fire. Then the same witness is asked this question:

> ‘T will ask you to state what you saw coming from the top of defendant’s locomotive, and what you saw, if anything, passing through the village of Milton Center, Wood county, Ohio, a short time prior to July. 29th, and within the month of July, 1894?”

This was objected to, objection sustained and plaintiff excepted. Stated that he expected to show by the answer that during the month of July and prior to July 29, 1894, several trains passed through Milton • Center emitting a great quantity of large sparks, and that the same was thrown a great distance from the engine.

We understand the rule to be well settled that where no engine had been identified as the cause of the fire, that the plaintiff may offer testimony showing the conditions of locomotives on defendant’s road and their action as to the emission of sparks near the vicinity where the fire in question was started and about the time of the fire, either a short *454time before or after, and that the witness will not be confined to a day- or two, but will be allowed to testify to a reasonable limit, and a month preceding the fire would not exceed that limit. This -court so held in *Lakeside R. R. Co.*v. Kelly, 6 C. D., 555.

The authority therein cited sustains that proposition. 144 Pa. St., 461.

Unless the identification by the plaintiff of a particular engine is certain, he is not confined in his testimony to any particular engine, but may show that the engines of the company generally emitted sparks, as they passed along the line of the railroad company. • It is true here that many of these questions are leading or are otherwise improper in form, but they were not objected to upon that ground, nor does the court exclude them for that reason.

■. Third: When the evidence in this case was concluded, the plaintiff asked the court to charge this proposition:

> “If you find that the fire from which the mill was ignited and destroyed originated upon the lands belonging to defendant, the C. H. & D. Railroad company, then this fact makes it *prima facie*evidence that such'fire was caused.by operating its railroad.”

This request the court refused, but charged the jury among other things, the following:

> “If the jury find from the evidence that the fire was communicated from the engine used by the defendant upon its railroad passing through Weston to the elevator on the 29th of July, 1894, and you further find from the evidence that by reason of such fire so communicated, the said elevator was burned, and that the elevator fire directly caused the mill owned by the plaintiff to take fire, and thereby to burn up, then the fact that such fire was communicated should be taken by the jury as *prima facie*evidence to charge the defendant with negligence, unless it further appears from the evidence that said engine was in proper order, as will be further explained and carefully operated and managed at the time of the alleged communicaton of fire, and provided, the plaintiff was not guilty of negligence in relation to such fire and used reasonable efforts to put it cut and save his property.”

The court also charged this:

> 1 ‘The mere fact that the Baldwin elevator was at said time located on the land of the defendant, and at said time caught on fire whereby the mill of the plaintiff was destroyed, creates no presumption that said fire was caused by the defendant.”

The evidence in the case shows that plaintiff’s mill destroyed by fire was situated on his own property adjoining the right of way of the railroad. Across from this mill and upon, the defendant’s right of way was an elevator .known as the Baldwin elevator. The evidence seems to show quite clearly that the fire originated in this elevator, and it is claimed by the plaintiff and the evidence tends to show that sparks from a locomotive fell upon the roof of the elevator, and at a point where the roof of an addition adjoins the main building, and it is claimed that the roof had separated from the main building leaving a large crack or open- - ing, through which the sparks fell to the floor beneath, upon which there had accumulated a pile of corn cobs. This pile of cobs and the roof of this elevator at the point where it is said the fire started was about thirty feet from the defendant’s track. We find no evidence contradicting this claim that is tending to show that the fire started in any other place. From the fire in the elevator the mill was *455caught and burned, so that the claim of the plaintiff is predicated upon the setting fire to the elevator, and if this be true or if the jury so find it, then the fire clearly originated upon the lands of the railroad company. In 1894 and before this fire, the legislature enacted a statute found in volume 91, page 187, that every railroad company operating a railroad in Ohio shall be liable for all loss or damage by fire 1 ‘originating upon the land belonging to said railroad.” Also that such railroad shall be liable for the damage by fire originating on lands adjacent to the railroad land, caused by sparks from an engine passing over such railroad, and the existence of the fire upon such railroad company’s land shall *be prima facie*evidence that such fire was caused by operating the railroad. In the next section, it is also provided, that the fact that fire was communicated by a locomotive engine of a railroad company shall be taken as *prima facie*evidence to charge with negligence the corporation in the use and occupation of such railroad. The plaintiff asked a charge which was pertinent under this law, the gist of which is, that if the jury found that the mill was ignited from a fire originating upon the lands of the company, this fact made it *prima facie*evidence that such fire is caused by operating such railroad. The court refused it, and charged the jury that such fire should be taken as *prima facie*evidence to charge the defendant with negligence, unless it should appear that said engine was in proper order, or unless it should appear that plaintiff had contributed by his own negligence to the fire.. This charge clearly ignored this statute, which in the first place make the railroad liable for all losses or damage by fire originating upon its own lands, and provides also a rule of evidence, to wit:

That the existence of the fire upon the railroad company’s land, as in this case, you found that the fire originated in this elevator ‘ ‘shall be *prima facie*evidence that such fire was caused by operating such railroad.” Not *prima facie*evidence of negligence to be rebutted, but *prima facie*evidence that the fire was caused by the operation of the railroad, and leaving to be rebutted by the company two facts only; they might show that the fire did not originate upon their lands, and they might show that if it did so originate, that it was' not caused by the operation of the railroad, but from some other cause, over which the company had no control. We think this fire originated bn the land of the defendant company, and if this statute has any effect, it is clear that the fact that it so originated when proven is *prima facie*evidence that the fire was caused by the operation of the railroad. The statute so says and we may not ignore its plain language.

It is suggested that this statute is unconstitutional, but we are given no reason and are referred to no authority for this claim. These statutes are in force in several states, and we know of no case where they have been held unconstitutional. There seems to be some reason for the validity ■ of such a statute, since the railroad company on its own land can best provide for the prevention of. fire, and we think the rule of evidence provided by the legislature was one that it had power to enact and that the court erred in refusing the request and in charging the jury, as stated.

Fourth: We are required to pass on all the errors assigned, and the next one is that the verdict is contrary to the evidence and the law, and an examination of this record indicates to us that this assignment of error is. well taken, for we must hold that the evidence fairly shows that this fire originated upon the lands of the railroad company, so orig*456inating, the statute says that it is *prima facie*evidence, that it was caused by the operation of the railroad. The company offer no evidence tending to disprove this, and hence the plaintiff was entitled to recover, if the proper rule of law has been given to the jury upon the proofs as they existed.

*W. H. Marts, James & Beverstock*and *R. S. Holbrook,*Attorneys for Plaintiffs.

*Swayne, Swayne, Hayes &*Tyler, *F. A. Baldwin,*Attorneys for Defendant,

This case will therefore, for the reasons above given, be reversed and remanded for a new trial.