This was an action on the case to recover damages for property destroyed by tire, alleged to have escaped from the locomotive engine of the appellant. There was a verdict and judgment thereon for $105.
There can be no reasonable doubt the fire did escape from the locomotive, and the property of appellee was thereby consumed. Appellant introduced evidence to prove that it had in use upon this locomotive an appliance of the most approved kind to prevent the escape of sparks; that the same was in good order, and that the person in charge of the engine was competent and skillful. On the other hand it appeared that the mesh in use in the spark arrester was larger than that used on some other engines on the road; that the train was nearly or quite a quarter of a mile in length, was loaded heavily and was making great speed.
It also appeared that this spark arrester was so contrived that the sparks would be thrown directly upward, but that in case of high wind these were liable to be blown further than the distance in question. All these circumstances were proper to be considered by the jury in determining whether proper care and diligence had been used to prevent the escape of tire. We are not impressed with the view that the verdict is in this respect so greatly against the evidence as to justify interference therewith. The statute expressly provides that the owner of property shall not he chargeable with negligence because he has used the same in the manner he would, had no railroad passed through or near it (Par. 104, Chap. 114, Starr & C. Ill. Slat.), and there seems to be no room in this case for exemption on the ground of contributory negligence by the plaintiff.
Various objections are urge 1 by appellant as to the action of the court in admitting and excluding evidence, the most important of which relates to the admission of evidence of the finding of cinders at different places on the farm after the fire occurred.
This proof is rather remote, bnt to some extent it goes to establish the charge that the engines of defendant, which were all equipped alike, save those which had the smaller mesh, were all apt to throw sparks, thereby supporting the general allegation that this fire was so occasioned, and supporting the position that too much fire was thrown for well equipped engines.
It was of the same class of proof that this engine set other fires the same day, and tended to show frequent danger from the use of engines equipped with the spark arresters in use on the road, and tended to contradict the position that the spark arresters were well adapted to the purpose for which they were used.
Other objections as to admitting and excluding testimony we deem it not necessary to notice, and we will only say in this connection we think no substantial error was committed.
The court declined to give any of the instructions asked by plaintiff or defendant and instead gave a charge of its own. This action of the court is criticised by appellant. After carefully examining the charge we find nothing worthy of substantial complaint. All that was necessary to a correct view of the law involved will be found in the instructions thus given to the jury. Without commenting upon the subject in detail, we are disposed to overrule this assignment of error.
It is urged also that the damages are excessive by the sum of about 85. The calculation upon which this conclusion is based excludes the testimony of plaintiff, which, if believed by the jury, would have justified an allowance larger than that made by the verdict. We can not interfere on this ground.
The judgment will be affirmed.
Judgment affirmed.