The Baltimore and Susquehanna Rail Road Company, vs. Albert P. Woodruff, 4 Md. 242

Eccleston, J., delivered the opinion of this court. The first bill of exceptions in this case concludes in the usual form and has a scroll for a seal, but is not signed by the judge. This, the appellee contends, renders it so defective that the decision of the court below, in regard to the admission of the evidence objected to, is not properly before us for revision.

Nevertheless, he insists, that in considering the prayers contained in the second exception, we are author» ised to look at the testimony set forth in the first, because the second begins by saying: “The plaintiff and defendant then to sustain the issues on either side respectively, offered the evidence given by each, and set out in the first bill of exception.” The argument on the part of the appellant assumes, that the first bill of exceptions is perfect in itself, as it has a seal, although not signed by the judge; but if this be not true, any defect arising from the want of the judge’s signature is cured by the language of the subsequent exception, which is regularly signed and sealed.

The appellant insists further, that if the defect contended fof by the appellee can avail to prevent a revision of the point presented in the first exception, this court cannot look at the testimony contained in it for any purpose. If void in reference to the question decided by the court, it is void as a bill of exceptions in every respect, which would leave the case entirely without testimony to sustain the plaintiff’s prayers, and consequently a reversal must follow.

But we need not stop to enquire which of these positions is correct; for whether the first exception is in the case, or out of it, the judgment below must be reversed, on account of error in both the prayers of the plaintiff. The first prayer begins thus: “If the jury shall believe from the evidence that the damage to the trees, fences, grass, &c., of the plaintiff was occasioned by fire communicated from the engines of, or by the agent or agents of the defendant,” &c.

In this it is assumed that damage was done to the trees, &c., of the plaintiff, and the 'jury are only left to enquire whether such damage to the trees, &c., of the plaintiff was occasioned by fire. This assumption, on the part of the court, was an interference with the province of the jury, who possessed the exclusive right of deciding upon the proof, whether any damage had been done to the property of the plaintiff. In Gaither vs. Martin, 3 Md.

Rep., 162, this court said: “No matter how clear and satisfactory the proof was to establish the sale, the court could not assume that it took place, as it would be an invasion of the rights of the jury.” See also 6 G. & J., 70. 6 Gill, 259. 3 Md. Rep., 176, and the cases there cited. These authorities establish very clearly that this prayer must be considered erroneous, even if the proof established the fact beyond controversy, that the plaintiff’s property was damaged in the manner complained of.

It is therefore of no importance in reference to this matter whether the testimony set out in the record is legitimately before us or not. In either alternative the result would be the same. The second prayer of the plaintiff is subject to the same objection. Indeed its beginning is in the very language of the first, except using the word “caused” instead of “occasioned.” As this case must go back for a second trial, we will express our views upon the questions presented in the record as if they were regularly before us, unaffected by any objection to the first bill of exceptions.

The fire complained of took place in the spring of .1845, After all the testimony in the cause had been given, except that which constitutes the point of the first exception, the plaintiff offered to prove, “that before the occurrence of the fires upon the plaintiff’s farm, as given in evidence, fire had been communicated by the defendant’s engine to the property of other persons on said road, and that it had been burnt in consequence of such fire.” This proof was objected to, but the court permitted it to be given.

It is said this evidence was proper for the purpose of authorising the jury to believe, that if the engine of the company created the fires offered to be proved, it also occasioned the one in controversy. And if not admissible with that view, it was so for the purpose of rebutting the proof given by the defendant to show care and diligence. The point in controversy or in issue was, whether the property of the plaintiff was fired by the engine of the defendant by negligence. The plaintiff being required only to prove the firing; the defendant to show the want or absence of negligence.

The books are full of cases, showing how careful the courts have been to refuse the admission of collateral matters in evidence. And this refusal is founded upon principles of sound reasoning. Collateral facts are calculated to introduce a wide scope of controversy, drawing off the mind of the jury from the point really in issue, and the adverse party not having notice before the trial that such evidence is to be produced, cannot be prepared to rebut it. See 1 Greenlf. on Ev., sec. 52.

In this section, and in the authorities cited below, cases will be found where this species of proof was rejected, when the facts offered to be introduced were quite as pertinent to the issue as in the present instance. 3 Phill. on Ev., 443, 444. (Cow. and Hill’s note, 330.) 8 G. & J., 311, 313, 314. It is by no means a necessary consequence, that because the engine did set fire to the property of another, it also was the cause of burning that of the plaintiff.

The only legitimate inference from the former fire, would be to show that a locomotive engine running upon a rail road is an instrument which can, and probably will, set fire to property along the •road. The very nature of such an engine is sufficient to satisfy a jury of that fact. And if the jury are to be considered as knowing nothing on the subject without proof, the appropriate testimony would be to describe the construction of the engine, the means of propelling it, and the manner in which it throws out sparks of fire when in motion.

The evidence offered is no less objectionable in reference to the question of negligence, than to that of the firing itself. There is no time specified. We do not know whether it was one month or five years before the injury in dispute. And the instances alluded to might have occurred without the least negligence, which the defendant would have been able to show by satisfactory proof, if notified of an intention to introduce them.

Or if they had been the result of great carelessness, nevertheless, the injury complained of in this suit might have occurred when the agents of the company were using all proper precaution. For it cannot be denied that such an engine may communicate fire when running in the best condition. But the plaintiff argues, that the proof of the defendant on the subject of care and caution, is so loose and indefinite as to render it illegal, and therefore the evidence objected to was proper as rebutting proof. Admitting he is right as to the defendant’s testimony, still his was not admissible. In Walkup vs.

Pratt, 5 H. & J., 56, the court held, that “if the counsel for the appellee had offered improper evidence, the court, on application, would have rejected it, hut the offering improper evidence by one of the litigant parlies, never can justify the introduction of similar evidence by the other party; such doctrine would lead to endless confusion, and destroy all the established rules of evidence.” And in Stringer vs. Young’s Lessee, 3 Peters’ Rep., 336, 337, it was decided that irrelevant testimony would not be admitted as an answer to irrelevant testimony.

In the argument upon the prayers in the second bill of exceptions, the plaintiff' endeavored to sustain the court below, under the provisions of the acts of 1837, ch. 309, and 1838, ch. 244. The defendant’s counsel insisted, that the act of 1837 was unconstitutional; and if not, that it was repealed by the act of 1838. They also contended, that this is an action at common law, and not under the statute, and therefore the rules of the common law arc only applicable to it, the provisions of neither statute having any influence on the questions involved in the controversy.

If mistaken in this view, they claim that the last act is the only one to be considered as having any bearing on the case, and under that they are entitled to a reversal. The act of 1837 was intended to make a rail road company responsible, in damages, for property injured by fire, caused by an engine on the road, whether there was negligence or not.

The act of 1838 provides, that the company shall pay damages for injuries by fire, “unless said company can prove to the satisfaction of the justice, magistrate’s court, or other tribunal, before which said suit may be tried, that the injury complained of has been committed without any negligence' ori the part of said company or their agents.” Whether the first of these acts is unconstitutional or not, is a matter of no importance on the present occasion. In regard to negligence, the last act is certainly inconsistent with the first, and therefore repeals it in that respect.

The legislature deeming the first too severe and rigorous, thought proper again to make the absence of negligence a defence, and for that purpose passed the act of 1838. In doing which, we think, they have restored the rules of the common law in relation to negligence, except only releasing the plaintiff from the obligation to prove it, and casting the onus of proving its absence upon the defendant. This, however, is denied by the plaintiff.

He thinks because the act requires a defendant to prove the injury was done “without any negligence,” the common law rules on the subject are not now to guide us; but a successful defence cannot be made, except by showing there was not the least degree of negligence; or, in other words,that the utmost care and caution were used. He relies much upon the word “any” as sustaining his view. But we must recollect that this word negligence has very different meanings-in relation to different causes of action known to the law.

In-some cases it means a very slight absence of care and prudence, in others the absence of reasonable care or caution, and again, such a want of care- as makes gross negligence; When, therefore, this word is used in the statute, in order to ascertain its appropriate meaning, we should look at the class of cases to which it has reference.

In doing this, we shall find, by the authorities, that in suits similar in character to the present, the degree of negligence which is requisite to render a party liable in damages, is that which results from a want of reasonable care and diligence, and not that arising from an absence of the slightest or least care and caution. Under such a rule of construction, the words “without any negligence,” must mean without any negligence occasioned by the want of reasonable care.

If this be so, it follows necessarily that the second prayer of the plaintiff is erroneous in assuming it to be necessary for the defendant to prove, that at the time of the fire the agents of the company acted with the utmost prudence, care and caution, and that if the disaster in question was occasioned by the least negligence, or want of care or caution, the defendant is liable in this action. It would he difficult to frame more stringent rules than are to be found in this prayer, and we think them such as the law will not justify.

The prayer is also defective in requiring the company should show, that when the fires look place the engines were propelled by the use of that fuel then in use for such purpose in the city ot Baltimore, least likely to communicate fire to property along the road. The proof on this subject is, that in the city of Baltimore, on the Baltimore and Ohio rail road, bituminous coal was used as an experiment, but wood was in use on the Philadelphia, Wilmington and Baltimore rail road, and the Baltimore and Washington rail road; and on the southern rail roads they used wood, not coal.

The plaintiff having proved that the coal made fewer sparks than wood, and was less calculated to communicate fire, the prayer must necessarily have led the jury to conclude that the defendant was obliged to use coal. They were not left to the inquiry whether wood was in ordinary use upon rail roads, or whether coal had been used, and found appropriate and suitable for such purposes; but they were told that to be exonerated from damages the defendant must prove, the engines were propelled by the use of the fuel then in use in the city of Baltimore, least likely to communicate fire.

In using the expression reasonable care and diligence, we mean, having engines properly constructed and in good order, with suitable fixtures for preventing injuries by fire; the spark-catchers such as are known to the company to have been used and approved of, and such as are best calculated to prevent the emission of sparks, allowing at the same time a sufficient draft upon the fire to create steam enough for the purpose of propelling the engine at a proper speed.

And we mean also such ears and diligence in using the locomotive upon the road, as would be exercised by skilful, prudent and discreet persons, having the control and management of the engine, regarding their duty to the company, and having a proper desire to avoid injuring property along the road. In regard to this subject, we would refer to the judicious remarks of Chief Justice Shaw, in Bradley vs. The Boston and Maine Rail Road, 2 Cush., 541, 542. This authority is cited simply as to the degree of negligence sufficient in such cases to render a defendant liable.

The reasoning contained in the preceding part of this opinion brings us to the conclusion, that the second and third prayers of the defendant ought to have been granted. The second asserts the position, that the plaintiff could not recover if the jury were satisfied “the fire was communicated without negligence on the part of the defendant.” The third contains the proposition, that there was no negligence on the part of the defendant, if the usual and proper precautions were taken, to prevent, as far as practicable, the communication of fire from the locomotive.

If, according to the second prayer,, the fire occurred “without negligence," there surely was no liability on the part of the defendant. And if, in the language of the third prayer, to prevent as far as practicable the communication of fire from the engine, the company took the usual and proper precautions, how eould the defendant be responsible in damages? The language is not simply the usual precautions to prevent the fire, but the usual and proper precautions to prevent it as far as practicable.

These prayers have been resisted by the plaintiff, not only by asserting the legal propositions they contain to be erroneous, but because there was no evidence to show a want of negligence. The first objection has already been disposed of. In regard to the last, we think there is some evidence tending to prove care and diligence, whether it was sufficiently strong to satisfy the jury that there was no negligence, we are not now called upon to decide.

Although it may seem to be somewhat out of the proper order of things to go back to the first prayer of the plaintiff, after having discussed the subsequent parts of the case, nevertheless it is necessary for us to do so on the present occasion. The point intended to be presented in that prayer is, that the damage by fire is prima facie evidence of carelessness or negligence on the part of the defendant, and that the defendant must prove there was not such carelessness or negligence, otherwise the plaintiff is entitled to recover.

The defendant admits this to be a correct view of the law under the act of 1838; but it is insisted, that the declaration is not under this act, and as it charges negligence in the common law form, the plaintiff is bound to establish it by proof, and cannot rely upon any legal inference of its existence, arising from proof of the fire itself. To this we cannot yield our assent. The statute does not give any new cause of action, nor does it give a new action to recover damages for an injury known to the common law.

It simply changes a rule of evidence, by releasing the plaintiff from proving negligence, if the fact of the fire is established, and casts the onus upon the defendant of showing there was no negligence, or, in other words, that there was proper diligence. By this, when the fire is proved, the law raises the presumption of negligence, and therefore the charge of negligence in the nar is proved, by showing that the fire was occasioned by the defendant.

In an action for a libel or in slander, malice is a necessary ingredient; and Starkie, in his work on Slander, at marg. page 433 of the 1st Vol., considers it necessary to a complete declaration that it should contain an allegation of malice, and the books of forms are in accordance with Starkie. In his 2nd Vol., marg. pages 52 and 53, it will be seen that in some cases of slander malice is a legal inference from the words spoken, and in such instances it is unnecessary to give evidence of malice in fact or actual malice, unless it may be to aggravate the damages.

We have said there was error in the beginning of the plaintiff’s first prayer, in assuming what should have been submitted to the jury. But for this error the prayer would1 have been correct, according to the view we have expressed in regard to the legal proposition intended to be presented by the instruction asked for. We are relieved from considering the fourth prayer of the defendant, as it has been abandoned. Judgment reversed and procedendo awarded.