Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-12

considered as settled in this state:
Koontz v o. R, & n. Co., 20 Or, 9;
Hawley V. Sumpter Ry. Co., 40 Or
500.
1t is often difficult for a plaintiff
to show which one of several locomo-
tives caused a fire, although it may be
certain that some one of them did so.
1t is in evidence here that other loco
motives of defendant passed within a
short time before the fire, and while
plaintiff hay have felt that it was
most probable that the one going west
was the source of the conflagration,
he could not be absolutely certain
until the facts were developed on the
trial. The scattering of sparks gem
orally by other locomotives was also
admissible to show the general care
exercised by defendant in the man
agement and equipment of its loco
motives. Plaintiff could not know be-
forehand the particular name, num-
ber and type of the locomotive used
on a particular train on a particular
day. Railways usually have some uni
formity in equipment and manage
ment, and if particular engine diff
fers from the usual type it is easy
to point this out by testimony.
1t is also claimed that, even admit
ting that the fire was kindled by
sparks from defendants locomotive,
the testimony introduced by defen-
dant, as to the inspection and good
condition of its locomotive and spark
arresting apparatus, was sufficient to
rebut the prima facie case of negli-
gence made by plaintiff, and to re-
quire the court to direct a verdict.
Where the evidence as to inspection
and good condition is not conclusive,
and it seldom is. the jury is the proper
tribunal to judge of its sufficiency
As was said in Chenoweth V. Southern
Pac, Co., 90 Or. Ill, III: "A jury is
not necessarily bound to accent as
conclusive the statement of a witness
that an engine was in good order, or
carefully and skillfully operated. al
though there is no direct evidence
contradicting the statement" This is
especially the case when the state
ments come exclusively from the SER
wants of the defendant, and where. as
in this case, the netting of the stack
was not produced for the inspection
of the jury, and where defendants
report from September 10 to the 21st. J
indicates that the locomotive was not
sent out, or it sent out was not in
spected; and further shows that on
September 80 secondhand diamond |
stack with new netting replaced the |
one in use on September TO- 1t is |
not enough that the evidence offered |
by defendant should rebut the prima |
facie case made against it, to the ex-
tent of showing that the appliances
were in good condition and suitable, |
but 1t should also rebut the presump- |
tion Of want of care in the case of !
these, and defendants evidence falls
short of this or, at least, a reasonable
and fair juror might conclude that it
did not come up to the required stan
dard in that respect. The weather
was very dry and the wind high. and.
as plaintiffs witnesses contend, was
blowing directly from the defendants 4
engine toward PLAINTIFFS buildings. All
Jury might well conclude that under
such circumstances it was the duty 1
of the defendants servants to observe i
such surroundings and to use greater
,are to avoid a sudden and rapid ex-
laust and consequent increase of
sparks than would be necessary under
iitfersnt circumstances.
1t must be admitted that the case
s not one entirely free from diff !