Citations
- 27 Fla. 1
Full opinion text
Raney, C. J.:
This is an appeal from a judgment recovered against appellant by the appellees in April, 1890, for the sum of 852,909.03, and costs, in an action of trespass.
The amended declaration states : That the defendant, who is a corporation under the laws of Florida, on April 9th, 1888, owned, controlled, managed and operated a railroad from the town of Sanford, in Orange county, to Tavares, in Lake county, in this State, known as the Sanford & Lake Eustis Division of the Jacksonville, Tampa & Key West Railway Company, and that at the same time, and at the time of the construction of the said Sanford & Lake Eustis road, the plaintiff, a body corporate under the laws of this State, was the owner of certain buildings in Tavares, to-wit: The Peninsular Hotel, of the value of $40,000 ; a store building on Tavares Boulevard, at the corner of Hew Hampshire Avenue, of the value of $6,000, and another store building, on the same boulevard, and near the same avenue, of the value of $2,000 ; one livery stable, valued at $1,500; one cottage on East Ruby street, valued at $600 ; another at the corner of the same street and Joanna avenue, valued at $500 ; two other cottages on the same avenue, valued respectively at $500 and $400, and one on Texas Avenue, valued at $400 ; and that the plaintiff was at the time "stated the owner of the following personal property, viz : The furniture and entire outfit of the hotel, of the value of $16,000; the counters, shelves, cases, &c., in the first - named store, of the value of $1,000; chairs, tables, maps, desks, life-preservers and harness, of the value of $1,000 ; one outfit of printing material, of the value of $1,200 ; the buildings, tenements and personal property, aggregating in value the sum of $72,100. That the railroad was constructed along Tavares Boulevard within 150 feet of plaintiff’s stores and hotel, and within 1,000 feet of all the other above-described property, and that defendant, although well aware of the inflammable nature of the material of which the buildings, tenements and j>ersonal property was composed, and of their liability to take fire, negligently and carelessly permitted their locomotive engines, operated and controlled by their agents, servants and employees, to be run along the said boulevard without taking necessary and proper precaution to prevent sparks of fire escaping from the smoke-stack of the locomotive engines, thereby endangering the property of the plaintiff to destruction by fire, and'that on the morning of the day aforesaid the defendant! s train of cars, drawn by one of its locomotive engines, and controlled, managed and operated by one of its employees, agents and servants, started from the said boulevard for Sanford, the said locomotive not having a spark-arrester therein (if there was any spark-arrester at all) so arranged as to prevent the escape of sparks from the smoke-stack, and the defendant having negligently, recklessly and carelessly omitted and failed to exercise due care and precaution to prevent the escape of sparks of fire from the smokestack of said locomotive engine, and not exercising due care and diligence in managing, controlling and operating the locomotive, it, the said locomotive, there being at the time of leaving said boulevard, and before, a high wind blowing, threw out from its smoke-stack a considerable number of sparks and blazing fragments of wood, which then and there set fire to a certain -wooden sidewalk on said boulevard, and the fire wus communicated to the adjacent buildings, including the plaintiff’s said buildings, tenements and personal property, and plaintiffs properties aforesaid were, all and each of them, totally destroyed by said fire, the plaintiff being without fault, and unable to arrest or prevent the spread of the fire, which fire was caused by the gross negligence of defendant in not exercising due care and precaution in preventing the escape of the sparks from the locomotive, the plaintiff claiming $75,-000 damages.
A demurrer was filed to this declaration, but the general assignment of errors that the action of tlie court overruling it was erroneous, having -been submitted “without argument,” we may treat the assignment as abandoned. We may .remark, however, that we perceive no defect in the declaration.
The demurrer having been overruled, the defendant filed five pleas :
1st. Not guilty.
2d. That it did not own, manage, control or operate a certain railroad, or any railroad, running from the said town óf Sanford, to that of Tavares, and known as the Sanford & Lake Eustis Division of the Jacksonville, Tampa & Key West Railway, and was not the owner, manager, controller, or operator of any such railroad on the 9th day of April, 1888, or at any time prior or subsequent to this date.
3d. The plaintiff is not a corporation as alleged.
4th. That the plaintiff by its own acts so contributed to its own loss- and injury that it has no right of action.
5th. That whatever loss or damage the plaintiff may have sustained, as set forth in the declaration, was by its own fault and negligence.
Issue was joined on these pleas, but the third plea has been abandoned in this court.
The questions to be considered next arise under the issue made by the second plea.
The plaintiff delivered to the defendant’s attorney on July 30th, 1889, interrogatories for discovery, addressed “to the superintendent!’ of the defendant company, “an officer of said body corporate,” and other interrogatories addressed to Charles C. Deming, secretary of the defendant company, “an officer of said body corporate,” such interrogatories being accompanied by a notice, to such attorney, requiring that the interrogatories should be answered by affidavit within ten days. Answers to the former interrogatories were made by one J. A. Darned, (he swearing that he is superintendent of the company), on the 31st day of the following month, and to the latter by Deming, the secretary, two days before, and on the 12th of September, other interrogatories addressed to the same secretary were served, and he answered them on the first day of October, and afterwards on a subsequent day in the same month filed an amendatory answer. Coteinporaneously with the last mentioned'interrogatories, there were served others addressed to “the superintendent” of the defendant company, “an officer of said body corporate,” which were answered October 4th, by one C. O. Parker, who states, among other things, in his affidavit, that he is the assistant general manager of the defendant company. On the 2oth of the last named month the plaintiff by notice addressed to the defendant company, and to J. -A. Darned, superintendent thereof, required .them to answer accompanying interrogatories addressed to J. A. Darned, such superintendent, and he answered them early in the succeeding month.
Upon the answers, with the interrogatories, being offered in evidence, they were objected to, but the court overruled the objection and* permitted them to be read, and this ruling is assigned as error.
The interrogatories were filed under certain provisions of “an act to amend the pleadings and practice of the courts of this state,” approved February 8th, 1861, secs. 18, 19, 20, 21, McClellan’s Digest, pp. 516, 517. The 18th and 19th of these sections are as follows:
“18. I-n all causes in any of the courts of the state the plaintiff may, with the declaration, and the defendant'may, with the plea-, or either of them may, at any other time, deliver to the opposite party or his attorney interrogatories in writing upon any matter as to which discovery may be sought, and require such party, or in case of a body corporate any of the officers of such body corporate, within ten days to answer the questions in waiting by affidavit, to be sworn and filed in the,ordinary way; and any party or officer omitting, without just cause, sufficiently to answer all questions as to which a discovery may be sought within the above time, or such extended time as the court or a judge may allow, shall be deemed to have committed a contempt of court, and shall be liable to be proceeded against accordingly.”
“19. In case of omission, without just cause, to answer sufficiently such written interrogatories, it shall be lawful for the court or judge, at their or his discretion, to direct an oral examination of the interrogated party, as to suc-li points as they or he may direct, either before the court or judge or clerk, and the court or judge may, by such rule or order, or any subsequent rule or order, command the attendance of such party or parties before the person appointed to take such examination for the purpose of being orally examined as aforesaid, or the production of any writings or other documents to be mentioned in such rule or order, and may impose therein such terms as to such examination and the costs of the application, and of the proceedings thereon and otherwise, as to such court or judge shall seem just.”
The 20th section is as to the return of depositions taken under the preceding section, and authorizes office copies to be given to the opposite party. The other section is as to reports by the examiner and costs.
It is contended that these sections have been repealed by the act of February 4th, 1874, entitled “an act in relation to’testimony in civil actions,” Chapter 1983 of the statutes, sec. 24, p. 518, McClellan’s Digest, which statute enacts that no person offered as a witness in any court, or before any officer acting judicially, shall be excluded by reason of his interest in the event of the action or proceeding, or because he .is-a party thereto; providing, however, the parties to, and those interesting in the event of an action, their assignees and those under whom such parties, or interested persons claim, shall not testify as to any transaction or communication between such a witness and a person then deceased or lunatic, against the repre sentative or assignee of such deceased person, or the assignee or committee of such insane person, unless such representative, assignee or committee shall be examined in his own behalf as to such transaction or communication, or unless the testimony of such deceased person or who may have become lunatic, shall be given in evidence.
The purpose of the act of 1861 was to enable parties to actions at law to obtain “discovery” without having to resort to the expensive and tardy procedure by bill in equity for srich purpose. In Wilson vs. Webber, 2 Gray, 560, it is said of a substantially similar statute : The main purpose of these provisions was to substitute in place of the tedious, expensive and complex process of a bill of discovery on the equity side of the court, an easy, cheap and simple ¡node of interrogating an adverse party, as incident to and part of the proceedings in the cause in which the discovery was sought. It was not intended to make the parties to a cause witnesses, who might at the pleasure of the party interrogating, be made to testify respecting the whole case, but only to give a limited right to obtain evidence from an adverse party in analogy to the well settled rules regulating bills of discovery in the court of chancery in England. See also Bayley vs. Griffiths, 1 H. & Co., 429. In Williams vs. Cheney, 3 Gray, 215, 217, 220, where the defendants proposed to read in evidence the answers of the plaintiff to interrogatories filed by the defendants to another suit pending in the same court, but in which the issues were not the same as those in that in which it was proposed to read them, it was held that such answers were competent evidence so far as they contained admissions by him of facts material and relevant to the points in issue in the latter action; and it is said of the statute, that its provisions secure to parties the right to make complete statements of all facts in relation to which they may be interrogated in any s’uit, and guard them against being compelled to make partial and garbled disclosures in answer to artfully contrived questions. There can, therefore, be no danger or hardship in allowing such statements to be used in evidence in like manner as other admissions of a party to a suit, fairly made, are ordinarily admitted against them. '
Whether or not this act does away with the equity jurisdiction or practice for obtaining discovery in aid of actions at law, we need not decide, as no such proceeding in equity is before us. The authorities cited in the books against the idea of an abrogation of the equitable jurisdiction or practice are: Cannon vs. McNab, 48 Ala., 99; Continental Life Ins. Co. vs. Webb, 54 Ala., 688; Buckner vs. Ferguson, 44 Miss., 677; Millsaps vs. Pfeiffer, Ibid, 805; Kearney vs. Jeffries, 48 Ibid, 343; Shotwell vs. Smith, 20 N. J., (Eq.) 79; Hoppock vs. United New Jersey R. R., &c., Co., 27 Ibid, 286, and French vs. First National Bank, 7 Benedict, (U. S. Dist. Ct.) 488; while those relied on as against it are, Rindskoph vs. Platto, 29 Fed. Rep., 130; Riopelle vs. Doellner, 26 Mich., 102; Heath vs. Erie Railway Co., 9 Blatchf., 316, and Brown vs. Swann, 10 Peters, 497. Assuming even that the statute last mentioned has superseded the right to use the equity practice, we are still-satisfied that the act of 1874, Chapter 1983, supra, has not repealed that of 1861, and for the reason that the sole purpose of discovery under the statute, nor of its prototype in equity, is not merely to obtain evidence for use upon the actual trial of the issues at law, but also to aid a party in preparing for trial. Baker vs. Carpenter, 127 Mass., 226; Blossom vs. Ludington, 32 Wis., 212; Woolley vs. North London Railway Co., Law Reports, 4 C. P. Cases, 602; Atkinson vs. Fosbroke, Law Reports, 1 Q. B. Cases; 628; Wych vs. Meal, 3 Peere Williams, 310; Vermilyea vs. Fulton Bank, 1 Paige, 37; Wright vs. Dame, 1 Metcalf, 237; Moodalay vs. Morton, 1 Bro. Ch., 469.
Though the general rule in equity is that a person who has no interest in the subject-matter of the suit, or is merely a witness, cannot be made a party defendant to a bill either for relief or for purposes of discovery, there is an exception to this rule in the case of a proceeding against a corporation, for the reason that a corporation answers under its seal, and not under oath; and a full knowledge of facts might not be obtained from it. 2 Story Eq. Jur., sec. 150, and notes; Garr vs. Bright, 1 Barb., (Ch.) 157; Fenton vs. Hughes, 7 Vesey, Jr., 287; Lindsley vs. James, 3 Cold., 477; Smith vs. St. Louis Mutual Life Ins. Co. 2 Tenn., Ch., 599; Fulton Bank vs. New York & Sharon Canal Co., 1 Paige, 312. Hence grew up the rule of permitting the officers of a corporation to be made co-defendants for the pxirposes of discovery, to enable complainants to obtain full knowledge of all facts material to their action or defence. The answer of the officer could, however, not be used as evidence against the corporation, but it served only to enable the plaintiff to understand his rights, and direct his suit, actiofi or defence; and the plaintiff could afterwards examine the officer or servant as a witness, when the corporation could have the benefit of a cross-examination or disprove the matters contained in his answer. Wych vs. Meal, 3 Peere Williams, 312; Vermilyea vs. Fulton Bank, 1 Paige, 37; Many vs. Beekman Iron Co., 9 Ibid, 188.
The reason given for this inadmissibility of the answer of the officer as evidence against the corporation is the rule that the answer of one defendant in chancery cannot be used, or is not evidence against his co-defendant, the admissions of the one do not bind the other.
Though we think the purpose of this statute was not to authorize either party to examine the opposite party or officer of the opposing corporation as to the whole case, or as to such opponent’s case, but simply in support of the case or defence of the party propounding the interrogatories upon the principles governing and limiting bills of discovery in chancery. Zeigler vs. Scott, 16 Ga., 389; Thornton vs. Atkins, 19 Ga., 464; Godwin vs. Wood, 5 Ala., 120; Pritchett vs. Munroe, 22 Ala., 501. We do not think the same rule obtains as to the use of the answers of an officer obtained under the statute'. The officer answers really for the corporation, the same as any other defendant answers for himself. The interrogatories are served on the attorney of the corporation, or if not on him, they must be served on such officer as makes it in law a legal service on the corporation. If there is-any reason or “just cause ” why the person called upon as an officer to answer should not answer the interrogatories, the corporation is in position to protect itself. Tlie answer of a corporation under its seal could not, under the chancery practice, be excepted to on the ground of its insufficiency-as a discovery. Smith vs. St. Louis M. L. Ins. Co., 2 Tenn., 599. The purpose of the statute was to obtain the same discovery of a corporation as would have been obtainable in equity before in aid of a suit at law if these bodies had been required to answer under the oaths of their officers instead of under seal. If an officer answers, but not “sufficiently,” the' statute provides the means of compelling a sufficient answer. Corporations are no more-at a.disadvantage under this rule than they are from their ordinary answers in chancery, .being prepared under the direction of their officers. The loyalty of officers on this line cannot be questioned so long as they tell the whole truth.
The introduction of the answers of the officers named above were objected to' on four grounds : 1st, it was not the proper way of bringing into court the testimony of an absent witness ; 2d, the defendant had no authority of cross-examination ; 3d, that Parker is not shown to be a part of the defendant company, and 4th, because if a mere employee of the company, it is not bound by its answers in these ex parte depositions.
The first and second of these objections are fully answered by what has been said above. A corporation has no more right to urge the second objection than any other defendant; it acts through its officers, and not otherwise. As to the third and fourth objections it is only necessary to say that it- must be presumed, in the absence of any showing to the contrary by the company, that Parker answered by and with its consent and as its officer. There is no pretense that the interrogatories were not duly served, or that any unfair advantage or irregularity or practice was attempted against the defendant. It is true the interrogatories were not addressed to him; still the only justifiable assumption is that he was put forward by the company to answer those addressed to another, and absent officer in -whose place he was acting. If he or any of these officers were of such a grade or character that they should not have answered, tlie objection should have been supported by some affirmative showing to that effect. Without saying more, an objection that any officer is not such one as should have answered, comes very inopportunely when the case is on trial. It is reasonable to require that it should be made before answering, and fair practice demands that the party propounding the interrogatories should not be liable to be ensnared by an answer filed as a compliance with the statute and an exception of this kind made upon the trial, which has been entered upon in reliance upon »snch answers to prove a part of his case.
Regarding the answers as evidence, and considering them in connection with other testimony bearing upon the same point, it is clear that the defendant company controlled, managed and operated the Sanford and Lake Eustis road at the time of the fire in question. It is not necessary to set forth all the testimony on this point. To do so in this, or in several other questions of fact, would swell the opinion, -which necessarily will be very long, beyond a tolerable measure.
It is asserted by appellant’s counsel, however, that barring the answers to the interrogatories for discovery propounded by plaintiff to Earned, Leming and Parker, there is no testimony to sustain the allegations of the declaration, upon which the plea takes issue. A concise statement of the other evidence bearing on the point will show this contention to be untenable, M. R. Moran, who was the general superintendent of the defendant company from the year 1887 to. March 80th, 1889, says that the Sanford & Lake Eustis Railroad, from Tavares to Sanford, was operated and controlled by the defendant during those years, and on April 9th, 1888, the day of the fire, to the best of his knowledge and belief; that the defendant company was not the owner of the road, and that the receipts were taken by the Sanford & Lake Eustis Company, and the expenses of the operation of the road were paid out of the moneys received from it so far as they went; that the engines, cars and rolling stock run upon the road on the day of the fire, and prior thereto, were not in the name of the Sanford & Lake Eustis Company, and whether they were leased by said company belongs more particularly to the accounting department, and not to his, and he has no definite knowledge as to the matter.
W. B. Tucker, who was agent of the defendant company at Tavares in 1888, says that the line of the road ran from Tavares to Jacksonville; that the portion of the line of which he was agent at Tavares was designated or set down on the cards as the Sanford & Lake Eustis Division of the Jacksonville, Tampa & Key West Railway; that the forms, in so far as the business of his office was conducted, were all headed Jacksonville, Tampa & Key West Railway Company, and he issued freight receipts and bills in the same name; that the printed through passenger tickets were headed “Jacksonville, Tampa and Key West Railway,” and there was a coupon good from Tavares to Sanford printed: “S. & L. E. Division;” that Jacksonville, Tampa and Key West trains were run on the division, that is, their engines were so labelled, and that an engine marked “J. T. & K. W.” carried the train out on the morning of the fire; that he rendered his accounts to the auditor of the Jacksonville, Tampa and Key West Railway, and looked to that company for compensation for his services, and received compensation from the paymaster or cashier of that railway, and in receiving freights from other roads connecting with the line at Tavares, he receipted for them in the name of the defendant company, and in delivering freights to such lines, delivered them in the name of the same company; that the business was thus transacted during the entire time of his agency at Tavares. On cross-examination he says: That during the same time he was acting superintendent of the T. A. & G., of which Major Alexander St. Clair-Abrams was pres i-dent; and on being asked if he knew that the cashier of the J. T. & K. W., was also cashier of the S. & L. E., replied: He paid me off. I used to send my remittances to him from that division, and further said that the did not know that the cashier of the J. T. & K. W., was cashier of .the S. & L. E., or how the pay rolls he signed were headed, but that he “just signed” his name. J. T. Sullivan, a witness for plaintiff, says he was a locomotive engineer on the defendant road on the morning of the fire, and ran the train that morning from Tavares, to Sanford, having come into the former place with a mixed train. E. W. Dunn, another witness for the plaintiff, says he was a conduc-. tor for the defendant company on the morning of the fire, and that his run that day was from Tavares to Sanford, the making of which he describes. The testimony of Earle, the foreman boilermaker, shows that the locomotive which pulled the train that morning was one of the defendant company’s locomotives.
The testimony set out above shows that the defendant company was actually operating and controlling the road. It was holding itself out to the public as the operator and controller of it. The road was managed and operated by its officers and employees, in its name, and not in the name of the Sanford and Lake Eustis or that of any other company. The public is not required to look further than' this. The statement of Moran that the ! ‘receipts were taken by the Sanford and Lake Eustis Company, and the expenses of the operation of the road were paid out of the money received from it so far as they went,” is not inconsistent with the actual and ostensible management of the road by the defendant company, to which he testifies. He also fails so state who paid or was to pay the excess of the expenses over what such receipts “went” to pay. No secret agreement as to the application of the earnings to the expenses will protect or relieve the company actually operating the road or train from liability to those suffering injuries by its negligence.
If we look beyond the testimony set out above .to that contained in the answers to interrogataries, we And the secretary of the defendant company testifying that it was operating the road “under and in accordance with a memorandum of agreement between the two companies,” providing' that the defendant company would operate the road until May 1st, 1888, and pay the difference, if any, between the expenses and receipts of the Sanford and Lake Eustis Company, and “supply for the use of the second party,” Sanford and Lake Eustis Company, rolling stock at stated prices for the use of the same, and that two and a half per cent, of the general administration expenses of the defendant company, including its steamboat service, should be charged as part of the operating expenses of the Sanford and Lake Eustis Company; that interest shall be reckoned at eight per cent on monthly balances, and the accounts ‘ ‘now outstanding between the two companies shall be computed and settled upon the foregoing basis,” the agreement not to cover any advances made, or expenses incurred, by defendant company on construction account.
The agreement Avas made in 1887. The effect of its terms is that the defendant company should in its own right operate the road, furnishing rolling stock and charging for the use of the same, and the two and a half per cent, of its OAvn expenses as operating expenses. There is certainly nothing in its terms or effect that Avould relieve the defendant from liability as the actual operator of the road, and the fact that the memorandum agreement may not have been formally executed by the defendant or any of its officers, does not do aAvay Avith the potential fact that the defendant was in possession of the road and actually operating it, as Avas understood by its officers, on those terms. If not on those terms, on Avhat terms, beneficial to the defendant, or relieAdng him from responsibility, can it be said the road Avas operated ?
The judge charged at the request of the plaintiff;:
That a party in possession of and operating a railroad, whether a lessee or otherwise, is xjrimarily liable for all injuries and default; and that even if the train or engine inflicted the injury is hired to another company, if the company owning the train employs the engineer, and said train is under the control of the engineers and officers of the company hiring it, said company is liable in damages for any injury inflicted; and that the owner of the engine inflicting the injury is liable to the person injured, if said engine is operated by an engineer in the employ and under the control of said owner.
That a company controlling and operating a railroad and employing all the agents, servants, engineers, conductors, and other employees, and having complete control over them, and doing business in its own name, whether said company operates and controls as lessee or otherwise, such company may be regarded as the owner pro licic vice of the road it controls and operates.
Each of these charges -were excepted to by the defendant, who requested the following charge: If the jury believe from the evidence that the fire which cle .stroyed the property of the plaintiff on the 9th of April, 1888, in the town of Tavares, originated from sparks emitted from an engine which left Tavares on the morning of the fire, ran over the track of the Sanford & Lake Eustis Railroad Company, and that the agents operating said engine were paid by the Sanford .& Lake Eustis Railroad Company, and were solely under the control of the Sanford & Lake Eustis Railroad Company, then the Jacksonville, Tampa & Key West Railway Company, the defendant corporation, is not responsible for the act of said agents and servants, although they may believe said agents and servants were guilty of negligence in operating said engine. This charge was refused, and the refusal excepted to.
We do not see that the judge erred either in instructing the jury as he did, or in refusing to charge as he was requested by the defendant. If one railroad company operates a railroad under a lease from another, it is responsible for its negligence to persons injured thereby, and the invalidity in law of the léase is no defence to the lessee company against liability'to persons suffering by its negligence. If its possession or operation of the road is, in law, unauthorized, it is no less the author of the injuries its want of care may proximately inflict upon them, and it cannot use one wrong as an excuse for or bar to liability for another which it could not have inflicted but for the first. 3 Wood’s Railway Law, sec. 489, 490; Rorer on Railroads, 606; Sprague vs. Smith, 29 Vt., 421; McCluer vs. Manchester & Lawrence R. R., 13 Gray, 124; Wasmer vs. Delaware, L. & W. R. R. Co., 80 N. Y., 212; Clany vs. Iowa Midland Ry. Co., 37 Iowa, 344; Pittsburgh, C. & St. L. R. R. Co. vs. Campbell, 86 Ill., 443; Doolan vs. Directors of Midland R. R. Co., Law Reports, 2 App. Cases, 792. In sprague vs. Smith, 29 Vt., 421, where trustees of mortgage bonds had taken possession of a railroad on account of default in payment of interest, and at the request of the company, and a question was whether the defendants were personally liable upon contracts made by the operators upon the road or for their negligence or misconduct, while the defendants continued to operate the road and to receive freight and pay for passengers for the benefit of the resiif-is qnetrust, Judge Red.field, speaking for the court, and after remarking that lessees are liable to the same extent aw the lessors would be, says: Indeed, there can be no question we think, that a mere intruder into the franchises of a railway corporation who should continue to use it for his own benefit, would be liable to passengers and the owners of freight who should employ him, to the same extent precisely as the company itself, wlrle continuing the same business. Any other view of the liability of such intruder would be to allow him to allege his wrong in his defence; and we can wee no reason why the defendants are not liable to the same extent as the company would have been, and upon similar grounds to those upon which lessees, or any others exercising the franchises of the company for the time must be; that is, they are the ostensible parties who appear to the public to be exercising the franchises of the company. It would be perplexing in the extreme to re-, quire strangers, suffering injury through the negligence of operatives under the defendant’s control to look beyond the party exercising such control. The party having this independent control is generally liable for the acts of those under such control, whether of contract or tort. In Hall vs. Brown, 54 N. H., 495, the defendants, owners of a private railroad, were, with the consent of a railroad corporation, accustomed to run their cars and engines over a part of the track of the corporation, including a highway crossing, and it was held that while thus in occupation of the track they were to be considered proprietors of the railroad of the corporation, under a statute providing that no such “proprietors” should obstruct by their engine, cars or train, any highway, under a certain penalty. Bee also Tracy vs. Troy & Boston R. Co., 38 N. Y., 433. And in McCluer vs. Manchester & Lawrence R. R. Co., 13 Gray, 124, the decision was, that parol evidence that a railroad corporation established by law in another state has held itself out through its agents as a common carrier over a railrohd in Massachusetts, is sufficient prima facie evidence of its capacity to contract for such carriage, to maintain an action against it for the loss of merchandise entrusted to it.
The defendant company was in possession and operation of the road and the train was under the control and management of its officers and.agents, and whether we consider or exclude from our consideration 'the memorandum, and whether the possession was rightful or wrongful, and whether the agreement of lease was valid or invalid, the company is liable. There is nothing in the autorities or the charge of the conrt inconsistent with this view.
IT. There is testimony to the effect that on the morning of April 9th, 1888, as a train of cars drawn by a locomotive of the defenla-nfc company started from Tavares, a large quantity of sparks, cinders and coals were emitted from the smokestack of the engine, and fell on the ground and side walk in front of buildings facing on the street or boulevard which intervened between these buildings and the railroad track, and in one instance inside of one of the buildings from nearly opposite to which the train started, setting fire in a number of places, to saw dust on the street near a pine Avood side-Avalk which, aaus adjacent to the buildings, and to trash which had collected under the sidewalk, and to some paper on a case of goods in the particular building referred to; and the sidewalk, which was elevated a few inches from the ground, caught fire, and the fire Avas communicated under and to one of the stores, and thence to other buildings, including those of the plaintiff, whose buildings, constructed of pine wood, together with its personal property described in the declaration, were entirely consumed. That a very strong wind, incident in that section of the country to the season, was blowing at the time in the general direction in which plaintiff’s buildings lay from where the fire was set out. The fire in the saw dust was suppressed in a number of places, but whatever efforts were made as to that in the sidewalk were ineffectual, and the llames spreading with great rapidity, nearly the entire town was destroyed within, according to the great preponderance of the testimony, one hour. It is testified by one witness that some of the coals were as large as three-quarters of an inch long, by a quarter of an inch wide, and by another that they were as large as the end of his little linger, and by another that they were the size of his finger nail, and by another, they were a quarter of an inch long, and they are also described as being burning coals when they fell. There are other witnesses who do not describe the sparks as being large, yet testify to seeing them and their setting out the fire, and some witnesses who saw this much, do not connect the sparks with defendant’s engine. The engine did not leave on time, but there is a. conflict as to the time it was behind, the plaintiff’s witnesses putting it at as much as forty minutes, and the defendant’s about fifteen minutes, leaving Tavares about 7:4» a. m. Plaintiff’s witnesses say that the engine started off with a sudden jerk, a.nd moved at a very great speed.
The testimony of certain witnesses of the defendant (the conductor, engineer, firemen, and foreman boilermaker) without stating what point each or any of them has testified to, is to the eifect, that on the morning in question, a ‘ ‘mixed train’ ’ came into Tavares, and the-freight cars being thrown off, the engine, Avhich was numbered 12, went around the “Y” with the baggage and passenger coach, took water, and returned to the platform, when the engineer oiled up, and on signal from the conductor, the train pulled out on its way to Sanford, going at the speed of about three or four-miles an hour until it got beyond the limits of the town, not starting at this speed, however, nor with a jerk, but as ordinarily, the engineer opening his throttle enough to start the train, or probably some two, three- or four, of its twenty-five or thirty notches; that the fire ivas made of lightwood without bark, and was a “fresh” or “green” fire, the fire box being full, filled while the engineer was oiling up to start out, and that such a fire makes a heavy dark smoke, and that with such a fire an engine does not throw sparks; that the engine was an extension front engine, and in first class, repair at the time; and that the spark -arrester was a. Cook arrester, a very good arrester, and as good as any in general use in extension front engines, and in perfect order, ancl all the appliances of the engine -were in good repair when the engine left the shops of' the company about the last of March preceding the fire, having been put in that condition then; that the dampers were closed, and the spark arrester was in proper position; and that it would not be possible to move a spark arrester while the engine was hot; that the slide, or door, of the spark arrester, which slide or door is about eight or ten by fourteen inches in size, was closed at the time the train started from, as it was on its arrival that morning at Tavares, and that this was indicated or shown by the handle to the rod of the door or slide, which handle is in full view of the engineer and fireman, was almost perpendicular downward, and had a pin on a chain to hold it in position, which pin was in its hole or proper place; that to open the door the handle had to be thrown up, the door working on an axis; that the spark arrester was examined the next afternoon and found to be in position and sound condition, there being no holes in the netting, and did not look like it had been tampered with; that the construction of the door or slide was such as to have a tendency to keep it closed, independent of the pin on the outside for that purpose; that the handle weighed four pounds, and that it would require a pretty good jerk sometimes, and especially when the engine was hot, to open the slide; that he does not see how there could be any movement of the door, even if the pin should be out, during the running of the engine. To cause it to oscillate would take a pretty good jerk of the engine; that it might do so if the engine should leave the track, but, not' otherwise; that part of tlie netting of the spark arrester had meshes an eighth of an inch square, and the other part was for smaller meshes. The engineer states that if coal or cinders three-quarters of an inch long should come from an extension front engine, that it would indicate that the spark arrester was in bad order, and that the emission of such sparks would probably occur if the engine was working hard; that if the spark arrester was closed and the netting in perfect condition it would not have been possible for sparks of the size of a finger nail—three-quarters of an inch long—to have escaped from the engine. The foreman boiler maker says that if the netting was in good order, &c., the sparks of the large size indicated could not have passed through the netting. The conductor says he did not notice any sparks from the engine; that he was standing in the door of the baggage car, with Map St. Clair Abrams, looking toward the town.
It is insisted by defendant that the burden of proving negligence, which burden is on the plaintiff, is not met by showing the mere fact of the setting out of fires by sparks emitted from the defendant’s engine, but that he must go further and prove that the sparks were emitted negligently, which negligent emission, it is admitted may be proved by circumstances of a character to raise a presumption of negligence, which presumption, however, may be successfully rebutted; and defendant insists, that even if plaintiff’s testimony is sufficient to raise such a presumption of negligence by defendant, it has been successfully rebutted by the latter in proving due care on its part in handling the engine, and that the engine was fitted with proper appliances for arresting sparks, and that they were- in proper order and condition. .
The trial judge refused the plaintiff’s request of á charge containing the proposition that if the jury were satisfied from the evidence that sparks came from the locomotive and caused the fire, which, spreading, destroyed plaintiff’s property, the burden of proof rests on the defendant to show that he ivas not negligent; but, on the contrary, he instructed them in accordance with the view requiring the plaintiff to prove that the fire was set out by the defendant negligently or through some default of duty or proper care on its part. Wharton on Negligence, sec. 870; Shearman & Redfield on Negligence, sec. 57-60; Pierce on Railroads, 437, 438; 1 Redfield on Railroads, 476; 2 Rorer on Railroads, 796; Savannah, Florida & Western Ry. Co. vs. Geiger, 21 Fla., 669; Jennings vs. Pennsylvania R. R. Co., 93 Penn. St., 337; F. & B. Turnpike Co. vs. P. & T. R. Co., 54 Ibid, 345. That negligence may be proved circumstanially, there can be no doubt either in reason or upon authority. A. T. & S. F. R. R. Co. vs. Bales, 16 Kansas, 252; Philadelphia & Reading R. R. Co. vs. Schultz, 93 Penn. St., 344. The fact that no instrument has yet been found which entirely prevents the escape of sparks from locomotives, seems, when coupled with the fact that the use of these engines is both lawful and eminently useful, a sound reason for the view that the mere emission of sparks, or the simple setting out of fires thereby, is not per se evidence of negligence, and will not throw upon the defendant the burden of removing such presumption, but when the circumstances of the emission are such as common experience, or the known efficiency of approved spark arresters in general use, tells us would, not exist if such instruments are properly used, such circumstances, of themselves, suggest negligence. Shearman & Redfield, sec. 59, 60; Wharton, sec, 871; Wood on Railroads, 1348-9; Garrett vs. C. & N. W. R. Co., 36 Iowa, 121; Pennsylvania & Reading R. R. Co. vs. Schultz, supra. Where the sparks are unusual in size, or both of unusual size and in unusual quantity, the inference of negligence arises. Ibid; Jackson vs. C. & N. W. R. Co., 31 Iowa, 176. In Hall vs. Sacramento Valley R. Co., 14 Cal., 387, the fact that fire was communicated to plaintiff’s grain from defendant’s engine, with proof that this result was not probable from the ordinary working of the engine, was held sufficient prima facie proof of negligence to carry the case to the jury. Henry vs. S. P. R. Co., 50 Cal., 176; Ellis vs. P. & R. R. Co., 2 Irredell, 140; Herring vs. Wilmington & Raleigh R. R. Co., 10 Ibid, 402. In Huyett vs. Philadelphia & Reading R. R. Co., 23 Penn. St., 373, it was shown that the weather was very dry and windy, the wind blowing strong’ across the road towards plaintiff’s house, which was seventy-seven feet from the railroad track; sparks were seen ■flying’ from the engine to the distance of more than fifty yards, and farms and fields were set on fire about the same time and at considerable distance from the road; the defendant’s evidence showing that the engines were in good order, and all provided with good spark catchers; that they flew most when the door was open, and the fire stirred, and considerably in firing up. The lower court directed a verdict for defendant,, but was reversed on appeal, where it was held that the question of defendant’s negligence was one for the jury to decide. Gagg vs. Vetter, 41 Ind., 228; Pennsylvania R. R. Co. vs. Hope, 80 Penn. St., 373.
The testimony in behalf of the plaintiff shows an extraordinary escape of sparks of sparks, both in quantity and size. The witnesses who testify to this are numerous, and the terms in which they describe them cannot fail to impress anyone, if the facts were as represented by them, that the emission of sparks was in all respects far in excess of anything likely to occur in the ordinary operation of a locomotive dxily supplied with modern appliances approved by the test of use, and properly managed by competent operatives. This testimony was of itself, to say no more now, sufficient to raise a presumption of negligence upon the part of tl\e defendant, and throw the burden of proof of care upon it. The railroad company does not present any affirmative testimony that sparks were not emitted as asserted by the witnesses of plaintiff, but its main reliance on this point is on the evidence that the engine was in good condition, supplied with proper appliances, and properly managed. In considering this point we shall assume that the testimony of defendant’s witnesses is to the effect that the engine was perfect in all -its parts and appliances, and its management unequalled, -yet after doing this the law governing the case will not permit us to disturb the finding of the jury, in so far as it imputes negligence to the defendant.
In Brushberg vs. Milwaukee L. S. & W. R. Co., 55 Wis., 106, the issue was whether the fire which destroy ed plaintiff ’ s barn was caused by the negligence of the railway company; the defendant’s evidence was that the engine was perfect in all respects, and supplied with all suitable appliances for preventing the escape of sparks, and run in a careful manner, and that the spark-arrester and fire box were both closed so that no dangerous sparks or fire could escape ; and the testimony of the plaintiff was not only that the barn was found on fire after the engine passed, but that when passing it the engine wras emitting sparks in great numbers and coals an inch or more long; that some of these struck the barn and some went under it; that coals of a similar size were seen immediately after on the track and beside the track in the immediate vicinity of the barn, and that severid stumps, a short distance from the barn, and near the tracli, were also found on fire soon after; and the officers of the company testified that if the engine had been properly run and cared for no coals of the size described could have escaped. The jury found for the plaintiff and the judgment was at firmed on an appeal taken by the railroad company. Alluding to the testimony in behalf of the plaintiff as to' the large coals and cinders, and their being carried by the wind to and under the barn, and that the barn was on fire a few minutes after the train had passed, it is said in the opinion: that there certainly was evidence to go to the jury, not only as to whether the fire was communicated to the barn, but also whether the engine was properly managed and run at the time, though it be admitted that the evidence on the part of the company was conclusive that the engine was properly constructed and furnished with the most approved appliances for preventing the escape of sparks, coals and cinders ; that if the engine was properly constructed and handled it would not and could not have emitted coals and cinders of the size indicated, and therefore it became a question of veracity between plaintiff’s witnesses and those of defendant, and this question was one which had tobe determined by the jury, and which the court could not determine. Referring to the cases of Spaulding vs. Chicago & Northwestern Railway Co., 33 Wis., 582, and Read vs. Morse, 34 Ibid, 315, (the former of which is relied on by the j appellant before us,) it is further said : Had the plaintiff’s proofs gone no further than to show that sparks escaped from the engine and were carried by the wind as indicated, without showing the escape of coals and cinders of an unusual size, the proof offered by the defendant might hare been sufficient to rebut the presumption of negligence on the part of the employees arising from the fact that such sparks ignited the barn, and put the case within the rulings of the two cases referred to. In A. T. & S. R. Co. vs. Bales, 16 Kansas, 252, the defendant’s proof was that the engine was of the first-class, in good order and condition and operated by a careful and skillful engineer,to the best of his knowledge and ability, and the plaintiff proved that the same engine on the day of the alleged fire caused a large number of fires, a dozen or more, but that other engines operated over the same track on the same day and before and since did not produce any such results. Now, says the opinion, it would seem to us that such evidence would lead irresistibly to the conclusion that there was negligence somewhere. Of course it woxild not locate the negligence, or show whether the fault was with the engine or the engineer. * * Now when the jury found that the engine was good and in proper condition, then they had to weigh the foregoing circumstantial evidence with the direct testimony of the engineer who testified that he managed the engine skillfully and carefully. If they believed from all the circumstances of the case that the testimony of the engineer was wholly unworthy of belief, they had the undoubted right to so find and entirely disregard it, and to say that the circumstantial evidence of the plaintiff tending to prove negligence, immeasurably outweighed the direct and positive testimony of the defendant declaring there was no negligence. The court could not weigh the evidence. In P. & R. R. Co. vs. Schultz, 93 Penn. St., 341, there was testimony that the engine was famished with an approved sparkarrester, and was examined on the day of the fire, when it was found to be in good condition, and that it so continued for months afterwards. Unfortunately for the defendant, says the court, the plaintiff furnishes abundant proof that the engine in question either was not furnished with the necessary spark-arresting appliances, or if so, they had been tampered with by the persons in charge of the same. On any other theory it is unaccountable that this locomotive alone, of all run on the road, should have fired the country through Avhioh it passed almost daily for the period of two weeks, and that it should have become so notorious in this respect that, as one of the Avitnesses says: “We watched for that train every day so that we might be ready to put out fires.” Moreover two of plaintiff’s witnesses say that this engine threw out sparks as large as a hickory nut, and there is the further significant testimony that shortly after the Schultz fire this locomotive ceased to be dangerous, or as one of the witnesses said: “After this Ave had a rest.” See also St. L. A. & T. R. Co. vs. Gilham, 39 Ill., 455; Webb vs. R. W. & O. R. R. Co., 49 N. Y., 420; P. & R. R. Co. vs. Hendrickson, 80 Penn. St., 182; Ill. Cen. R. Co. vs. McClelland, 42 Ill., 355; 23 Penn. St., 373.
Tlie application of these authorities to the testimony of the case before ns is patent. An inspection of the piece of the netting in evidence, with meshes one-eighth of an inch square is, to say nothing of the testimony of the engineer and foreman boiler maker enough to satisfy anyone that the larger coals could not have passed through the arrester if the door had been kept closed, or the arrester in proper condition. This impossibility rendered the testimony of the plaintiff’s witnesses and that in behalf of the defendant on the subject of the engine’s having a spark arrester, or admitting that it had one, of its proper management, and hence on the issue of negligence 'oel non, absolutely irreconcilable, and it made a question of credibility of witnesses, the decision of which the law remitted to the jury, who have settled it in favor of the plaintiff; and under the jurisprudence governing us, this court cannot interfere, whatever may be its view as to the correctness of their judgment. There is nothing in any case cited by the appellant that is inconsistent with these conclusions.
It is urged under this head, that certain charges given to the jury were erroneous. These are the 3rd, 14th, 19th, 20th, 22nd and 23rd. The objection urged against the 20th charge is, it affirms that the defendants were required to exercise the “utmost care,” under the circumstances indicated in the charge. The authorities relied upon in support of the objection are, Wharton on Negligence, sec. 869; Frankford and Bristol Turnpike Co. vs. Philadelphia & Trenton R. R. Co., 54 Penn. St., 345; Michigan Central R. R. Co. vs. Anderson, 20 Mich., 244; Kansas Pacific R. R. Co. vs. Butts, 7 Kansas, 308. The first of these authorities, as far as applicable, calls for “the diligence good specialists in this department are accustomed to exercise, ’ ’ and for the exercise of ‘ ‘every precaution '* * * to prevent injury.” In the Pennsylvania case the plaintiff’s bridge had been constructed long before the railroads, and was destroyed by fire set out by the locomotive'of a passing train. The track was about one hundred and fifty feet from one end of the bridge, and three hundred feet from the other, and the nearest depot stood about four hundred yards from the bridge. The plaintiff’s contention was, in so far as the case need be noticed now, that the station should not have been placed so near the bridge, and that the bridge should not have been passed by the locomotive under steam. It was shown by the testimony that an engine under ordinary headway would run six hundred feet with the steam shut off, but that stopping at the station required that steam be put on to run over defendant’s bridge over the same creek that plaintiff’s bridge spanned. There was no evidence as to any unusual emission of sparks either in quantity or size. The doctrine of the case, announced as abundantly supported by authorities adduced oh both sides, is, that there being in the charter of the company no prescribed limit of approach towards buildings and bridges, it could locate its road and station on such route and at such points as in the judgment of the directors would be beneficial to the interest of the corporation and the public; that in the absence of proof of a special motive to do injury, we must presume that the location was made for proper ends, and not to do injury ; that the proximity of the station and of the line of the road to the plaintiff’s bridge could not in itself be considered .a ground of legal liability, but an element only in as-' certaining the decree of reasonable care to be used under the circumstances ; that the law in conferring the right to use an element of danger protects the person using it except for an abuse of his privilege, and that in proportion to the danger to others will arise the degree of care and caution to be used in exercising the privilege; that great danger demands higher vigilance, and more efficient means to secure safety ; where the peril is small less will suffice; that it is undoubtedly the duty of a railroad company using such dangerous machines fired by intense heat and running-in close proximity to our houses and valuable buildings to use the utmost vigilance and foresight to avoid injury; that itis the duty of those using these hazardous agencies to control them carefully, and adopt every known safeguard, and to avail themselves from time to time Of every approved invention to lessen their danger to others; that questions of skill, vigilance, care and proper management in any business, are necessarily questions of fact, depending upon the circumstances of each case, and are to be referred to a jury ; what is care in one case may be negligence in another, where the clanger is greater and more care is required ; that as the degree of care has no legal standard, but is measured by the facts that arise, it is reasonable that such care must be required as it is shown is ordinarily sufficient undar similar ciroumstanc.es to avoid the danger and secure the safety needed ; and therefore that ordinary care is the only rule that can be stated by a court; and that which is ordinary care in a case of extraordinary danger, would be extraordinary care in a case of ordinary danger; and that which would be ordinary care in a case of ordinary danger, would be less than ordinary care in a case of extraordinary danger. Holding these views, the court said it could not controvert the proposition of the Turnpike Company that it is the duty of railroad companies to adopt the best precautions against danger in use, and it is not sufficient for them to exercise what, under circumstances of less risk, would be ordinary care. It was held, however, that the trial judge had not violated these principles in his charges. The conclusion of the court upon the point was, that to hold it improper to stop at the station, and that steam must be shut off in passing by the bridge, would be to abridge the prpper and ordinary use of the road; that the injury in the case did not arise from any special act of negligence, but from a customary and lawful use of the road ; that such use would, however, not justify stopping to blow off steam through the mud valves at a common crossing where many horses pass or are frightened by the noise, or stopping in a high wind opposite a new house in the process of building, where the burning cinders and sparks are carried through the open doors by the wind; that negligence has been defined to be the absence of care according to the circumstances, but that it liad never been held that steam must be shut off in passing-even in (dose proximity to dwellings, though many miles of railroad run within a few feet of valuable houses, mills and manufactories, and indeed through towns and cities.
The Michigan case is one in which the plaintiff’s building- was destroyed by fire communicated by sparks flying from defendant’s engine. The lower court, says the opinion, charged the jury that regard must be had to the actual state of things at the time, the force and direction of the wind, dryness of the .weather and proximity of the building to the railroad, and that what might be ordinary care on a still and wet day, might not be on a windy and dry one, and when near combustible matter; the question still being what care a. prudent man would exercise in precisely similar circumstances. There had been full testimony upon the character of the engines and stacks, and the use of the proper means to render them as secure as possible from doing mischief by the discharge of sparks, and this charge was independent of any question as to the quality and character of the equipments as suitable to be used. This rule was held to be incorrect, the Supreme Court saying: that railroad trains cannot deviate from their track, and must make schedule time, not only for purposes of business, but for consideration for human life, and that those who establish themselves in the neighborhood of railroads must know that trains are expected to run with regularity, and if there are special risks arising from no want of care in the proper equipment and management of engines and trains, those risks are not chargable to the railroad, but are incidental to the situation, .and the extra care they demand devolves upon the other party, and the consequence of his not exercising it must fall upon him, because the railroad is notin fault. The Kansas decision merely decides that where the fire escapes owing- to high winds, and no negligence or want of care upon the part of the railroad -company, the latter is not responsible.
There is nothing in any of these authorities that requires us to hold the use of the word utmost to be fatal to the charge. The Pennsylvania court uses the same expression asserted here as being objectionable in the •charge. hTothtng need be said of the section in Wharton’s work, nor of the Kansas case, and we think that the meaning of the Michigan decisio