Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-12
Taffe V. o. R. & n. Co, Wasco County
Decided October 3. 1911.

and submitted Sept. Il, 1911. A. S.
| Bennett Bennett & Sinnott, on brief),
| for respondent. A c. Spencer (and
w. w. Cotton and W. A. Robbins, on
brief, for appellant. Mcbride, ].
| Affirmed.
| This is an action for damages on
account of the alleged destruction of
plaintiffs cannery and cold storage
warehouse by fire, occasioned by
sparks emitted from defendants loco
motive.
At the close of plaintiffs testimony
defendant moved for a nonsuit on the
| ground that no evidence had be sub
mitted sufficient to justify a verdict
| for plaintiff, which motion was over
ruled. After the conclusion of the
testimony defendant moved for a di-
rected verdict, which motion was also
denied. Plaintiff had a verdict for
$4,000 and defendant appeals. Other
facts appear in the opinion.
Mcbride, ]. 1t is difficult to dis
cuss the matters included in the re-
fusal of the court to grant nonsuit
or the motion for a directed verdict,
without discussing and comparing the
testimony generally, and this course
would involve incumbering the re-
ports with a long detail of facts which
would be entirely useless hereafter to
the courts, the public or the persons
! concerned We WILL therefore, state
| briefly the conclusions We have drawn
from the testimony and apply the law
4 to these findings.
| ba
southeast corner of the cannery be-
tween the hours of half-past one and
two o'clock in the afternoon of Sep
tember 10, 1908. When first discov-
cred it was small smoking spot,
occupying only few inches, but rap
idly spread, destroying the cannery
and other buildings northwesterly
from the cannery. At a time vari-
Ously estimated at from 10 minutes
to a half hour, and probably about 10
minutes before the discovery of the
| fire, one of defendants west-bound
/ trains, drawn by a locomotive burning
coal, stopped at the platform about
$50 to 200 feet from where the fire
originated, the engine being approx
imately in southeasterly direction
from the spot where the fire was dis
I covered. About the time this train
left, locomotive, burning wood, of
the Portage railway, operated by the
State of Oregon, and having attached
to it two loaded cars, ran in on a
track between defendants track and
the cannery stopped at a distance of
from 20 to 100 feet southeast from
the place where the fire originated,
switched to another track, and de-
parted. The weather was exceedingly
dry, the wind high, and there was no
cause suggested for the fire except
that it started from the sparks from
one or the other of these locomotives
From the testimony We have no doubt
that it did so originate, and the prin-
cipal contention of the defendant up
on the trial seems to have been that
the circumstances tended largely to
indicate that the fire started from
sparks from the locomotive of the
Portage road instead of from its own.
/ Under these circumstances, the di-
rection of the wind, the condition and
/ equipment of the locomotives and the
comparative liability of coal-burning
and wood-burning locomotives to emit
sparks became the principal subjects
to which the testimony was directed
On behalf of the plaintiff witnesses
were introduced who testified sub
stantially that the wind blew directly
from where defendants locomotive
1 stood toward the buildings where the
fire originated, and this testimony
was somewhat strengthened by the
circumstance that the buildings to the
northwest of the cannery building
were burned, while those to the west
and southwest were not DESTROYED.
There Is also testimony tending to
show that sparks emitted from burn
ing coal would retain their vitality
longer than sparks from wood; that
defendants train was somewhat diff !
ncult to start; that the wheels spun
around on the track; and that a hard |
start OF this character would require |
a greater exhaust and probably tend
to emit more sparks than if the start |
were easy.
Defendants witnesses claimed that |
the wind was practically from the |
east, and that the spark arrester of /
the Portage railway locomotive was |
IN bad repair and unsuitable for the /
purpose; and it was contended that |
considering the closer proximity of /
this engine to the place where the /
flre originated, it was most probable
that 1t was the efficient cause or at
least that the testimony left the mat
ter in such condition that the origin /
OF the fire was a mere matter of con-
lecture and speculation.
Upon a careful consideration of the
whole testimony we do not coincide
with defendants contention. We are
of the opinion that there was testi-
mony upon which reasonable man
might well have come to the conclus-
ion That II was more probable that the
IRE originated from sparks from de-
PENDANTS locomotive than from the /
locomotive of the Portage railway,
and that it was much more probable
that II originated in that manner than
from any other cause. Ii Is true that
the testimony was contradictory in
some particulars, but every court in
this state is required to instruct the
jury that 1t lis the judge of the cred
ibihty of the witnesses and the value
and effect of the evidence" and il
was for the jury to say what part of
the evidence produced conviction in
their minds.
1t is contended that the court erred ,
In permitting evidence OF the throw
ing of sparks by other engines of de- !
but the admission OF testi- .
nony OF this character has been sane
TONED by other decisions Of this court
and the law upon that subject may he /;