Judgment of the Court
J.-The respondents reside at the village of Stony Point, in the County of Essex, and at a distance from the railway of the appellants of only a few feet.
On the 25th October, 1895, shortly after the passage of a fast express, the premises of the respondents were observed to be on fire, and were soon entirely destroyed.
The present action was instituted to recover the amount of the loss, namely, $1,500. The principles of law goverifing cases of this kind are well known.
A railway company, like an individual, is liable for the consequences of its negligence only when that negligence is the cause of the damage, or at least has materially contributed to it. That is the general rule.
It is submitted on the part of the appellants that where they use the most perfect locomotives, and are not otherwise guilty of negligence, which was certainly the cause of the accident, they are not liable, a proposition which is supported by considerable authority and seems to have received the THE sanction of this court in The Ntw Brunswick Railway Co. v.
This particular point, however, does not present itself in the present instance, as the jury have found negligence on the part of the appellants which was the cause of the damage.
The ques- -Girouard J. tions submitted to them and their answers are as follows:
1. Was there any negligence on the part of the defendants in the construction or management of the engine? A.--No, except that the master mechanic admits that any engine will emit sparks and cinders. 2. Did the defendants negligently permit an accumulation of grass or rubbish or both on their road opposite the plaintiffs' place which in the case of the emission of sparks or cinders would be dangerous ? A.--Yes.
3. Did the fire in question originate from or by reason of a spark or cinder from the engine ? A.-Yes.
4. If so, was the spark or cinder communicated directly by means of a high wind from the engine to the barn or stack of the plaintiffs', or was the communication by way of a spark or cinder falling upon the defendants' land and the fire then running by reason of dry material from the place where the spark or cinder fell to the fence and then to the plaintiffs' property ? A.-By falling on the company's premises, then to the plaintiffs' property.
It must be conceded that the evidence in support of the last finding is weak, and it is not therefore surprising that the trial judge (Ferguson J.) charged the jury in favour of the defendants, but being of the opinion that there were relevant circumstances given in evidence to go to them, he refused a non-suit; and in appeal his judgment was unanimously maintained (Burton C.J. and Osler, Maclennan and Moss JJ.A.) The appellants have relied upon the recent decision of this court in Sanisac v. Central Vermont Railway Go. (2) as supporting their contentions.
If it has any application, it is against them.
There the origin of the fire was a mystery; so two courts had found, and (1) Can. S. C. R. 688.
26 Can. R1. we declared that in a case of that kind where mere questions of fact were involved, the jurisprudence of the Privy Council and of this court was not to disturb the unanimous findings of two courts; and in other CoPANY cases we decided that it was especially so when they o were returned by a jury, unless clearly wrong or erroneous.
J. In the present instance, we agree with the courts below that there is some evidence of negligence which in the opinion of the jury, affirmed by the two courts below, was the cause of the damage, namely, the accumulation of the dry rubbish along the railway property; and following Senisac v. The Central Vermont The Geo. Matthews Co. v. Bouchard and other cases, we are of opinion that the appeal should be dismissed with costs.
Appeal dismissed with costs.