Babcock v. Fitchburg Railroad

The plaintiff’s intestate, Fred Bennett, was killed on the 15th day of October, 1889, by the explosion of a powder mill, and the claim of the plaintiff is that the explosion was caused by sparks which escaped from the smoke stack of one of the defendant’s locomotives because it had not adopted suitable appliances to prevent the escape of the sparks.-

The mill was nearly two hundred feet from the railroad track, and the locomotive was drawing a heavy train of cars

The mill had been in the. same location for many years, and the railroad had been operated since the year 1876 with the same kind of locomotives, without causing any injury to the mill.

The mill was a wooden building twenty feet ■ square, one story high, covered wfith tin and painted with fire-proóf paint. There were no openings in the building on the side towards the railroad, and all the openings therein were kept closed except when the person working in the mill opened them. The mill was in operation only about six months each year at intervals as there was business for it.

The first question for the determination of the jury was whether the sparks from the locomotive caused the explosion. The sole evidence bearing upon this question is that Bennett was seen to enter the building a few moments before the explosion, and that the locomotive was approaching emitting the smoke which was carried to and over the building, and as it settled down over the same the explosion occurred. Bennett was the only person in the building, and it does not appear what he was doing at the time. There is no evidence that any of the windows or doors of the building were open, or that there was then any occasion for having them open, or that there was any crevice or opening through which sparks could enter the building. Persons looking on from a distance saw the smoke, but no witness saw any sparks or cinders. It seems that powder mills are liable to explosion from defects in machinery or the carelessness of men, as mills near this place had exploded twelve or fifteen times in previous years, averaging a death of a human being at each explosion. Under such circumstances, how could the jury find the cause of this explosion % The smoke settled down upon the building at the time, and Bennett entered the building a few moments before.

If there had been evidence that the- explosion could have been caused only by fire passing or brought into the building from the outside, then there would have been some basis for the verdict. But. there was no such evidence, and we know there could be none. If the natural tendency of the operation of the defendant’s railroad was to endanger this mill by the sparks emitted from its locomotives, the case would be different. But the locomotives con this road had been operated for thirteen years, under all conditions, in all kinds of weather, carrying long and short trains, and yet the powder mill had never been destroyed.

The plaintiff was bound to show that the explosion was not caused by the carelessness of Bennett, and that it was caused solely by the fault of the defendant. It cannot be presumed that he was free from carelessness; and the burden was upon the plaintiff in some way to prove it. (Weston v. City of Troy, 139 N. Y. 281 .)

Verdicts must stand upon evidence and not upon mere conjecture, however plausible, and if the situation be such that the plaintiff cannot furnish the requisite evidence the misfortune is his. We think the plaintiff failed in this branch of her case. But she failed still more signally in another branch of it.

The engine which is charged with this explosion was a diamond stack, and it was such as had been prior to about the

But still further; there is no proof in this case that the extension front engine was invented or brought into use because it is safer or less liable to set fires than the diamond stack. All the witnesses who spoke upon the subject testified that the purpose of the extension front was to make the engine more efficient by giving more draft, and for economy in the use of coal.

We will briefly call attention to some of the evidence. One of the plaintiff’s witnesses testified that he had noticed “ the coming out of sparks of the extension front engines and diamond stack engines many times.” Another witness testified that “ railroad managers are altering some of the old style engines into the extension smoke box for the very object of obtaining more area of netting. The purpose of this is to get a better draft through the flues ; ” that “ the purpose of this greater area of netting in the extension front is to produce a better draft; ” that “ an extension front, by breaking up the coals and cinders, reduces their size so as to force them through the netting, depending upon the mesh of the netting altogether; ” that “ there is no difference between the throwing of sparks by the diamond stack engines and the throwing of sparks by the extension front engines, if the netting is intact and sound. There is no difference as to the quantity that will be thrown; ” that “ there is no reservoir1 in the extension front to hold the sparks for any length of time. There is considerable more space in an extension front to hold the sparks than in an ordinary smoke box, probably double the quantity it will hold. As soon as it gets filled up to a certain extent it empties itself. It has got to thresh it through the

We, therefore, are unable to perceive how.it was possible for the jury, upon the evidence, to find that the extension

Our conclusion, therefore, is that the judgment should be reversed and a new trial granted, costs to abide the event.

(dissenting). The plaintiff has recovered damages against the defendant for causing the death of her son and intestate on the 15th of October, 1889. The deceased was at work in one of the mills of the Schaghticoke Powder Company, which was blown up, as is claimed, by a spark from one of the defendant’s engines, thus causing his death. The mill in which the deceased was at work was situated on the northerly bank of the Hoosick river and about one hundred and ninety-five feet from the track of the defendant’s road. The testimony tended to show that a freight train, composed of some twenty-two cars, was approaching in the direction of the mill, laboring hard upon an ascending grade, the stack of the engine emitting volumes of black smoke, which was carried by the wind towards the mill, over and around which it settled in what is described as a dense mass. When the train reached a point opposite the mill an explosion took place which utterly destroyed the building and plaintiff’s intestate was instantly killed. The fact that' the fire was communicated from the defendant’s engine to the mill rests wholly upon circumstantial evidence, but it was of such a character as to warrant the jury in finding that the explosion was produced by sparks from the defendant’s engine. It was shown that the train was laboring against an ascending grade of about thirty feet to the mile, requiring the frequent use of fresh coal, which was applied by the fireman, in order to furnish the necessary steam, the emission of thick smoke from the stack in unusual quantities was described, the direction of the wind was favorable, and when the smoke was seen to settle over the mill, the explosion took place, and no other cause for the accident was discernible or even suggested. The screen

It is sufficient to say, without further reference to the testimony on this branch of the case, that the origin of the fire which produced the explosion presented a fair question of fact for the jury upon all the facts and circumstances of the case, and we are concluded by the -finding and must assume, as the jury have found; that the explosion was caused by a spark from the defendant’s engine. But the defendant was engaged in using fire to propel cars by steam, under the sanction and authority of law, and it is not liable for any damage resulting from its use unless it was guilty of negligence. It was the duty of the defendant to use every reasonable precaution to prevent the injury, and unless we can say, as matter of law, upon the evidence, that it has performed this duty, then the verdict must stand.

The defendant was intrusted by the legislature with an agent for propelling its trains of an extremely dangerous character, and the law imposes upon it the duty of observing due care which must always be measured by the degree of danger or the risk incident to the exercise of its powers. When it neglects or fails to adopt and use such precautions as may reasonably be expected, under all the circumstances, to prevent injury to the person or to. the property of others, it becomes liable for the resulting damages.

It is urged in behalf of the plaintiff that the engine which the defendant used on the occasion, and which produced the accident, was so constructed as not to properly guard and control the sparks and cinders arising from the fires, and in this respect it omitted to perform the duty which the law imposed upon it of adopting every reasonable precaution against injury. The engine was what is known as the diamond stack engine, which is so constructed that the particles of burning coal, set free from the mass, are driven by the air and the power of the exhaust steam against the netting or screen, upon the top of the smoke stack, until eventually they are forced into the

The measure of duty imposed by the law upon the defendant was thus stated by Judge Folgeb in Steinweg v. Erie Railway ( 43 N. Y. 123 ): “ The rule of law is that the appellant was guilty of negligence if it adopted not the most approved modes of construction of machinery in known use in the business, and the best precautions in known practical use for securing safety. If there was known and in use any apparatus which, applied to an engine, would enable it to consume its own sparks, and thus prevent the emission of them to the consequent ignition of combustible property in the appellant’s charge, it is negligent if it did not avail itself of such apparatus. But it was not bound to use every possible invention which the highest scientific skill might have suggested, nor to adopt an untried machine or mode of construction.”

In that case, goods intrusted to the railroad, as a common carrier, were destroyed by fire communicated by a spark from the engine.' The contract under which the .corporation undertook to transport the property released it from damage or loss to any article from or by fire or explosion of any kind.” The court held,' however, .that this did not exempt the carrier from liability for loss by- fire caused by its own negligence. The case turned, not upon any peculiar, duty or obligation resting upon the railroad, or growing out of its contract, as a common carrier, but solely upon the question of negligence in omitting to adopt any known appliances in practical use which would enable an engine to consume its own sparks. The .defendant in that case had been released from the special and peculiar obligations of a common carrier, and its liability for the destruction of the goods left to .depend upon proof of its

In Searles v. Manhattan Railway Co. (supra), the plaintiff recovered for an injury to his eye caused by a hot cinder which fell -from one of the -defendant’s locomotives. The judgment was reversed in this court upon the opinion of Judge Earl, for the reason stated that “the undisputed evidence shows that all the appliances used upon the defendant’s locomotives to prevent the escape of sparks and cinders were skillfully made and were the best known” thus recognizing the principle. In O’Neill v. N. Y., O. & W. Railway Co. (supra), the plaintiff recovered damages caused by sparks ■communicated to woodlands from the defendant’s engines. The judgment was affirmed in this court. One of the questions submitted to the jury was “ whether the- engine was -supplied with the most approved method of arresting sparks in known use’’ The liability of the defendant in case it was not was conceded in the motion for a non-suit and in the disposition made of the case in this court. In all these cases the proof with respect to negligence was much .weaker, in my -opinion, than that presented by this record.

A railroad company, in the construction and equipment of its engines, is bound not only to employ all due care and skill -for the prevention of injury to the person or property of

In this case the learned trial judge submitted two questions to the jury. First, whether from the testimony the explosion was produced by sparks or burning cinders from defendant’s engine entering the building through an open door or window and coming in contact with the powder, and, secondly, whether the defendant exercised due care and caution in running its trains with an engine so constructed as to emit sparks, when a better and safer one was attainable and in general use, not only upon its own road but others generally throughout the country. On the last question the jury were instructed that the defendant was not bound to use such appliances as the highest scientific skill can devise, yet it was bound to use such approved methods as had been adopted in the business, which were reasonably attainable by the company and in general use, as to afford proper security to the lives and property of others. The jury were fully informed by the proofs as to the comparative merits and safety of the two engines, the danger of communicating fire to combustible matter on the line of the road, the time that the extension front engine had been in general use, the saving in the use of fuel and the additional expense involved in the change. In this state of the case the question whether the defendant did or did not perform the duty imposed upon it was not a question of law but one of fact for the jury, and as it has been determined upon sufficient evidence in favor of the plaintiff this court cannot disturb the verdict. .The other exceptions in the record have been

Finch and Gbay, JJ., concur with Eabl, J., for reversal. Peckham, J., concurs with Eabl, J., on second ground, and dissents from first ground of opinion.

Andbews, Oh. J., and Maynabd, J., concur with O’Bbien, J., for affirmance.

Judgment reversed.