CHICAGO, ST.P., M. &
the recovery of consequential damages, resulting from the negligence of the defendant, then the right of action does not accrue until actual damage has resulted from the negligence complained of. In th(l case at bar, the sinking and destruction of the McLeod was not an invasion of any legal right of the plaintiff. The contract between Weaver & Co. and the owners of the Bntte does not deal with the duty of Weaver & Co. towards third parties or their property. The action is not based upon the claim that, through the failure of Weaver & Co. to properly perform their contract obligations, injury was caused to the Butte or any other property or property rights of the owners thereof. Recovery is sought because, through the alleged negligence of Weaver & Co., injury was caused'to the owners of the McLeod, for which injury the plaintiff, as of the owners of the Butte, has been compelled to respond. Reiinbursement is sought, not for any injury to the property or property rights of the plaintiff, nor for the breach of any contract with him, but for, money he has been compelled to pay to the owners of the McLeod for damages resulting to them from the negligence of Weaver & Co. The right to sue for indemnity for the money which the plaintiff was compelled to pay did not accrue until payment had been made, and, necessarily, the statute of limitations did not begin to run until the right to sue therefor had accrued. It was therefore error to hold that the statute began to run at the date of the collision causing the destruction of the McLeod, and the judgment must therefore be reversed. Other questions are discussed in the briefs of counsel which we have not considered, this opinion being strictly limited to the one point of the time when the statute began to run against the right of plaintiff to sue for the money he was compelled to pay to the owners of the McLeod. The judgment below is reversed, at cost of defendant in error, and the case is remanded to the circuit court, with instructions to grant a new trial.
ST. P., M. & O. Ry. Co.
of ,AppealB, Eighth
Otrcutt. October 8, 1892.)
In an action against a railroad company for the negligent burning of buildings situated near its tracks, where the only issue was as to the origin of the fire, evidence that, on different occasions within some weeks prior to the loss, fire had escaped from engines of the company in the immediate vicinity of the property. was admissible as tending to prove the possibility, and the consequent probability, that some engine caused the fire. RaUway Co. v. Richan'd8on, 91 U. S. 454, followed. In such case it was not error for the court to charge that it is the duty of a railroad company to keep its right of way entirely free from combustible materials, where the instruction as a wholE' directed the jury to determine whether inflammable materials had been spread over the right of way by employes of the company,
SAME-INSTRUCTIONS-CHARGE TAKEN AS A WHOLE.
an<l. Uso, tbat such fact was not conclusiv!3 'evidence of negligence, but only a oir. oumstance'to be oonsidered as tending to show a oareless mode of oarrying on the , business. ' ,
8. SAME-PAROL EVIDENOE-TITLE TO LAND.
1n ,s)lohcas!3 );estimonyofone of th!3.plaintiffs that the buildings belonged to himaelhmd his coplaintitf was admissible to show a prtmafacie right of ownersbip iu'libe property destroyed.' No issue having been made as to plaintiff's title, it was JlO/> to prove the same by tile best evidenoe.
Xu. Error to th,e Circuit of the United States for the District of Minnesota. 'Action by Joseph W. Gilbert and another against the Chicago, St. Paul, Minneapolis & Omaha Railway Company for the negligent burning of .plaintiffs' buildings.. Verdict and judgment for plaintiffs. Defendant brings error. AffirIX)ed. S. ;L. Perrin, (J. H. on brief,) for plaintiff in error. T. J. Knox and John A. Lovely, for d.efendants in error. BeforeCAWWELL and SANBORN t Circuit Judges, and SHIRAS, District Judge. " SHIRAS, District Judge. On the23d of May, 1889, a steam flouring mill and barn, with their contents, the property of the defendants in error, situated in the village of. Adrian, in the state of Minnesota, in immediatepl1oxiOlity to aline of railway owned and operated by the plaintiff in error, were destroyed by fire.. The owners of the burned property brought this action against the railway company for the purpos ofrecovering the damages causectby the destruction of their propt erty. allegipg that the cOm;pany haduegligently placed and suffered to Jlpdn the right, of way and, land of the company adjoining the propertyofthe in error, combusbble material composed of dry grass, weeds, like, and that on said 23d day of May, by Said property which was not properly equipped nor properly handled to prevent the escape of fire, and as a consequence thereof fire was communicated to the combustible material upon the right of way, whence it spread to the mill and barn adjoining, causing their destruction. The company in its answer denied the several acts of negligenQe allegeq. against it, and averred that the fire and consequent destruction oltheproperty ,,'ere due to the negligent and careless manner in which the mill was managed, claiming that the fire escaped from the trlill, and not from the locomotive of the company. Upon these issues the ci.jfle was tried before the court and jury, the trial resulting in a verdict and judgment in favor of the plaintiffs below, the damages being asseSSed at $15,878.33. To reverse the judgment the railway company brings the case to this court by a writ of error. , It is stated in the brief of counsel for the plaintiff in error that "the important question in this case .raised by the first ten assignments of error is whether the .CRse disclosed by the record can be properly and fairly distinguished from the case of Railway, Co. v. Richardson, 91 U. S.454." The assignments of errorthus referred to are based upon the admission,
CHICAGO, ST. P., M. & O. RY. CO. t1. GILBERT.
over the objection of the company, of the testimony of several witnesses that on different occasions within some weeks prior to May 23, 1891, fire had escaped from the engines of the company in the immediate vicinity of the property subsequently destroyed. In the case just cited the supreme court held such evidence to be admissible, "as tending to prove the possibility, and a consequent probability, that some locomotive caused the fire, and as tending to show a negligent habit of the offi· eers and agents of the railroad company." We do not think counsel for plaintiff in error have successfully distinguished the facts of the two cases. Counsel cite and comment at length 335, 17 N. W. Rep. on the cases of Gibbons v. Railroad Co., 58 132; Railroad 00. v. Stranahan, 79 Pa. St. 405; Allard v. Railroad 00., 40 N. W. Rep. 685; Ireland v. Railroad 00., (Mich.) 44 N. W. Rep. 426J. and Coale v. Railroad Co., 60 Mo. 227,-as authorities establishing the distinction that evidence showing the scattering of fire by the engines of the company at other times and places is only when the identity of the particular engine supposed to have set the fire in the case on trial is unknown. We must not, in the consideration of this question, lose sight of.the issues involved. In the case at bar it'WftS not admitted by the company that the fire was caused by sparks esoaping from a- particular engine, in which event the query would be as to the condition of that particular engine and the mode in which it was handled·.. On the contrary, ·the parties were at ·issue as to the origin of the fire, the plaintiffs claiming that it was due to fire escaping from some one of the engines ofthecompany, and the defendant that it was due to fire escaping from the mill itself. Upon this issue itwouldcertainly be' open to the defendant to prove that the mill was so run and managed by the plaintiffs that the fire frequently escaped therefrom,and caused ,the' burning of combustible matter in the vicinity of the mills, because such evidence would tend to support the claim of the defendant that the fire was started by sparks or live coals coming from the milL :;:n like manner it was, upon this issue of the origin of the fire, open to plaintiffs to prove that the engines of the company did permit theescape of sparks, causing other fires, as a fact' tending to show that this particular fire thus originated. This action was brought under the provisions of section 60, c. 34, Gen. St. Minn., which enacts that: "All railroad companies or corporations operating or running cars or steam engines over roads in this state shall be liable to any party aggrieved for all damage caused by fire be\ng scattered or thrown from said cars or engines. without the owner or owners of the property so damaged being required to show defect in their engines, or negligence on the part of their employes; but the fact of sllch fire being scattered or thrown shall be construed by all courts having jurisdiction as prima facie evidence of such negligence or defect. * * *" Under the provisions of this section, to obtain the benefit of the prima facie case therein provided for, His necessary for the plaintiffs to prove that the conflagration complained of resulted from fire scattered or thrown
from the cars of the cOnlpaqy, all<l., when the cnmpany denies that the .give'll 9riginated, thell, upon this issue oithe .origin of the fire. it as· cOlilllpetent to :prove generally Ulat the by the defendant companyd'o seitter or throw out ,fire, becausefin the language of the supreme court i;D'theRichardson Chse, 8'Upra, such evidence tends to prove "the possil:>ilitY,.and consequent probability, that some locomotive caused tbe fire'?"iSee,also, Sheldon v. Railway Co., 14 N. Y. 218; Ross v. Railroad Co., 6 Allen, 87; Longabaugh v. Railroad Co., 9 ; Nev. 2'71. Furthermore, the fact that fire did escape from time to time from the enginestlsed 1.1pon the: company's railway, in the vipinity of the prop,was a fact proper for thecollsideration of the erty which .was juryin determining whether the company was or not; negligent in allowaocumulate on the right of wlly,· which was ing one of the issues intbeCMe",; Hfire di.d in fact from time to time escape from engines of the (lompany, then the act of placing or aUowiug the accumulation of combustible matter upon the right of way would have to be considered, in . connectionwith: the probability of the escape of fire,. in determining the . issue of negligence in this particular. It. would not be negligence the &Pcumulation of combustible material,unless there was dangel'c>ffil'ebeing communicated tbereto, and it was competent to prove tbisdange:\'by showing that in fact fire did from time to time escape from tbElenglnes: ulled upon, the (lompany's road;. Not only so,butevidence oftheaettipg out of other fires, in this vicinity tend to from sparks or coals' coming .frqmtb,e, locomotive engines. show knowledge on part of the mUwaycompany of the need that existed for preventing the accumula.tiOljl c>f inflammable materials, and would thus directly bear. upon. the question whether the,company had exercised allthevigilapce and Jm.·esight which' the circumstances mandedofit. We conclude, that the evidence: objected to was competent under the issues in this cause, and it was ,not error to admit the same. The next conteJ:ltion of counsel for the .company. is thaV'the court, in e:ffect,told the jury that the rightQf way of the railway must be kept clear from all material that would facilitate the spread of fire, in case a fire should start; the jury were, ineflect, instructed, as a matter of law, that under all circumstances and conditions, and at all times, it was the imperative and duty of t4eniilway company to keep its right of' way entirely free from qombtlstible material of every kind· and nature, ",-and that in sO.ruling the;.(lourt erred. 'The difficulty with this contention of oounsel is that it has'no sufficient' support in the record. It is true that the courtdid'eay"the right of war of a railway company that facilitate the spread ought to be kept,dellr from of fire, in case tHe fire should start," out this sentence must be read in connection with its context in determining its true meaning. It is not permissible to take out a single. sentence from the charge as a ground of error, and to mai!1tain that iUncorrectly states the law because it does not contain all: the limitations or qualifications necessary for theaccu-
CHICAGO,. ST. P., M. & O. 'RY. CO. '!1. GILBERT.
rate statement of the particular proposition to which it relates. !twill be borne in mind that one ofthe charges of the coinpany was that its employes had plaeed upon the right of way, inclose proximity to the property of plaintiffs, a quantity of chaff, straw, and other refuse from the yards of the company, and'it was ill regard to this i$Bue that the sentence excepted to was used. 'fhe charge of the court on this branch of the case was as follows: "It is well known, and several railroad men have testified to it, that, using even the best appliances, coals 01' sparks will escape frorri an engine, and do damage to property adjacent to the right of way. And such being the case, the railroad company should keep its right of way free ,front all combnstible material that might facilitate the spread of fire, and it is proper evidence for you to take into consideration if you are satisfied that the plaintiffs, by their Witnesses, have proved that these inflammable materials were spread. over this right of way, in determining whether such act shows negligence on the part of the defendant company. Of course it is not conclusive, but it is to be taken into consideration by the jury as tending to show a careless mode of conduct 11;1 carrying on its business. If you are satisfied the fire was commu· nicatedfJom this engine, (which, as I said before, Is the vital point,) then It is to be taken into consideration by you if this material was put over tbere, in determining whether or not it Wall aD Rot of negligence on the part of the defendant.. Tbis case is peculiarly one presenting questions Of fact. Tbe law in regard to it is qUite simple and settled with regard to the duty of both parties. It is ch:uged by plaintiffs that the defendant was negligent, a,nd, on the otber band, the defendant charges: the plain tiffs with being negligent themselves; Phat is, guilty of. contributory negligence. The test is: What prudent person have done under. simIlar .circumstances? would BP: No better test Can be applied, for all that either of these parties was required to exercise was ordinary care with regard . to the managemellt of ,business. It f " . '.. . Clearly the court did not charge, as a matter of law, that it was, under all circumstances, the duty of the railway company to keep its right of way entirely free from combustible material. The jury were instructed to determine from the evidence whether the inflammable materials had been spFead over the right of way by the employes of the company, and; if they so found, that such fact would be proper evidence to he considered in determining whether such act constituted negligence on part of the company, it being further stated that, if the jury found that the company, through its employes, had covered the right of way with inflammable material, the fact would not be conclusive evidence of negligence, but was only a circumstance to be considered by the jury as tending to show a careless mode of carrying on the business. of the railway. Certainly, the company had no just ground for exception to this part of the charge, for it was as favorable to it as it could possibly expect. The last assignment of error discussed in the briefof counsel for plaintiff in error is to the effect that the court should not have permitted one of the defendants in error to testify that the mill belon!?;ed to himself and his coplaintiff. It is said that "it is elementary law that title to real property cannot be proved by p!lrol. Title to such propertjT can only oe obtained or passed in certain prescribed ways, and in accord-
an<;e :'fith,>positive rulElS law." Where an action is brought for thed,irect purpose ofestablishing tit1,eto rea1ty:, and where the question of, ownership of the title is the jssue in the case, and the judgment rendered in the cause will become record evidence of the title, then it may.well be that the best ,evidence of title should be adduced. What this best evidence may be depends upon the facts of each case. In some cases it may consist of long adverse possession, provable only by parol. The rules, of evidence applicable to issues framed to settle and adjudit'.aie the .titkto reaIty are not necessarily applicable to cases of the kind now unqer consideration. Under the issues actually presented to the courtandjuryin this,c8use,aIl that was necessary for the plaintiffs to show waslJi'prima facie right of ownership of the property destroyed, audthie could:be done 'by .parol testimony. If the company or any had made isslle that:, the plaintiffs below we,re not the 9f ;thepro,Perty, anp were not therefore antithid to, damhad intro.cluced evidence tendingto show titlein:8Qwe'Qther party, it might then have become necessary for the plaintiffs ' to,' have submitted-, other evidence in support of their right. done, they could ,rest upon the prima facie evidence of title by proqf ofpqssession of at the time of its It was certainly proper to accompany the evidence, showof the proPerty in plaintiffs, with testimony showing ing ,that plaintiffs claimed to be the owners of the property, because such ,testimony would show that the possession was held under claim of title, out a clear prima facie case upon this question, and this ':was the, elfect of the testimony excepted to. Finding. no error in the :record,it follows that the judgment must be and is affirmed, at cost of ' " . ' 'plaintiff iD' error.
WINSOR C04.L CO. 'l1. CHICAGO
& A. R. Co.
(circuit Oourt,W. D. Missouri, W. D. November 7, 1892.)
REGl1LATION-UNBEASONABLE RA;TES-RAILBOAD 0014"
, Sections: 1,10, and 11 of the act of the legislature, (Laws Mo. 1887, p. 15, Ex. · ,Sess.,) standing alolle, would seem to entitle thf'l: shipper to recover triple damages 'from tne common carrier for exacting unreasonable and unjust freight charges, when\lye:t<''!1 jury deem the rate unooasoo1able or,uJijust; but looking at the whole in; connection with antecedent legislation, inpuri materia, it is held that the triple liability does not arise where the carrier liae not charged a rate in excess of the maximum tate established by the railroad commissioners, or the maxImum rate permitted by the statute in the absence of any action thereon by the ,commissioners., ' 2. , The' tig4t of action at common law in favor of the sPipper for extortionate charges was sUPl1rseded by the remedies Provided by the:stat]1te. The act 'of 1887 declares that "it shall be the duty of the railroad Commissioners to$ee that $chedules of rates adopted ·bJ common carriers are reasonable and 'just, and they may, upon complaint of any pe'r'son, or upon their own motion with: out complaint, J:!lake inquiry from time to time, and determine whether the sched·
8. -SAME-CONSTRUCTION OF STATUTE.