The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1875-11-25

MOTIVE DID 1.-THE COMPANY APYE11s-A
TEST CASE.
i corresponding Of the Baltimore oaze.ts1 IS
! WINCHESTER, YA., November 2O.-Tbe
Circuit Court OF Frederick county, judge
lR. ii. Turner presiding, has had before It q
case Of unusual interest, being entiried Mel.
son On. The Baltimore and Ohio RAILWAY
Company, damages being claimed for four
hundred and sixty dollars for Che alleged
buruiDg, in june, 1874, Of one and one haif
acres Of growing wheaI, and four roods or
more Of hedge-row, on the farm of the
plaintiff, along the line OF the road int the
vicinity of Kearnestown, four miles from
winchester. The counsel employed IN this
case are among the seading members Of this
bar.
This is regarded az test case both By the
bar and the company, and upon its final de-
cision will be settled the liability of railways
for damages done by the burning OF pro.
Eperty outside OF towns and along their lines
in Virginia, there being no .provisions.in the
| State Code defining the liabilities to pay for
damages done to property by sparks from 10.
comotives. The trial, although the damage
done amounts TO only seventy.fve dollars,
Eexcltes great interest, and has occupied a
whole week session of the court. ON this
case many Others. In this, county and else
where wilt depend..Sfa E3G - faS.ff
a5 The plaintiff in support Of bis demand
for damages, claims that his wheat-feld, &C.,
was. set on fire by sparks from defendants,
locomotive and this fact raises the. prfmd
facse presumption Of negligence on the part
Of the company and 4 Is employees and ma.
chinery. Also, that the burden of proof
rested upon the defendant on this question
of negligence SO raised. gr'yf.
The defence rests upon the ground of
proper and due care and caution on their
part to prevent alfsuch burnings by the use
of the best and most approved kinds of ma.
chinery; that Ii Is utterly impossible to pre-
vent the escape Of sparks. but that the style
OF stack used on Engine No. 2T0-the one by
which this fire was caused--is the very best
and most improved in use among railways I;
| That the spark-arrester thereon com bines all
the latest improvements to secure the least
possible escape of sparks, and thereby to In
sure the greatest safety--all that was by law
of them required that the weight of all au-
thorities, in the absence of any State statute,
to be that although this FIRE was 80 caused,
yet in, view of the fact they have right un.
der their charter to run their engines, and
that it is impossible to so run them without
the escape of some sparks, they are not and
cannot be held responsible if they used due
aud ordinary caution and the best Of ma.
chinery.
The fact that Engine 270 was in good re-.
pair and fitted with a wire gauze spark.
arrester, they claim, saved them harmless
from any damage done in the regullr and
ordinary discharge of their business, unless
negligence were clearly proven to the con-
| duct Of that business either on the part of
their employees or by defect in their ma.
chinery.
After argument the Court gave the follow
ing instructions:
INSTRUCTIONS On PART OF DEFENDANT.
The Court instructs the jury that If they
believe from the evidence that the defend.
ants engine was properly constructed, was
in good order, had the usual apparatus for
preventing the escape of sparks and fire, and
was managed by competent and discreet per.
sons. they must find for the defendant
although they may believe that the fire origi-
mated from sparks or fire from defendants
engine. ~.
Second. That the burden of proof Is upon
The plaintiff, and that the negligence Of the
defendant will not be presumed, but must
be shown by the plaintiff as a matter Of fact.
Third. That If they believe from the evil
dence that the fire in the declaration men.
toned resulted from the defendsnt's' neglf-
gence, the measure Of the plaintiffs damage
lis the actual v6lueof the property destroyed.
and ia estimating said damage they cannot
take into consideration any supposed conse.
queut diminution In the value of the plain
tilf-s farm beyond the value OF the materials
I destroyed. ,..... a..t /.
Fourth. That the emission Of sparks from
the stack of a locomotive is not In itself ille-
gal, and that the loss of property adjacent
to the roud from the sparks of fire so emit.
ted. apart from negligence on the part of the
defendant, do not entitle the plaintiff to re-
cover. r. ~
Fifth. That in assessing damages in this
case they can only consider the matters CON-
planned of By plaintiff and stated in the
declarations andthe bill OF particulars there
with filed. IN .af.r.-,.s >.
Sixth. That to entitle the plaintiffsto re.
cover, the culpable negligence Of the defend
ant or It's agents in the matter of the acts
complained Of and stated in the declaration
must be proved to the satisfaction of the jury.
Seventh. If the jury believe from the evil
dence that the plaintiffs property, as COM
planned Of in the declaration, was burned by
reason Of the extreme dryness Of the same
and of the season, without culpable neSli.
gence In relation thereto on the part of the
defendant or its authorized agents, they
shall find for the defendant; but they are
further instructed that the defendants were
bound to use greater care In such season
than in ordinary seasons. -.
The case was given to the jury at 3IP. H.,
i who rendered their verdict at 4 z. ii. for
the plaintiff for SO damages. The Railway
Company will appeal the case to the Court
of Appeals of Virginia. y.