Where the cause was removed from the state court to the district
court and comes here solely because plaintiff in error is
incorporated under an act of Congress, this Court goes no further
than to inquire whether there is plain error.
Where defendant on the trial insisted that sparks or cinders
from only three identified locomotives which were properly equipped
with spark consumers could have caused the fire which destroyed
plaintiff's goods, but introduced evidence tending to show that all
its locomotives were properly equipped, which fact it had pleaded,
it was not error to admit evidence in rebuttal to the effect that
locomotives were seen within a few days after the accident near the
scene of the fire which were emitting large cinders.
The trial court having properly instructed in respect to
contributory negligence, it was not error to refuse to instruct
that a railway company was not liable for damage by fire caused by
its own negligence because it had not consented to storage of the
damaged cotton on its
Page 235 U. S. 430
platform, it appearing that there had been a long continued
custom for such storage.
209 F. 205 affirmed.
The facts, which involve the validity of a judgment against a
railroad company for damages by fire caused by sparks from one of
its locomotives, are stated in the opinion.
Memorandum opinion by MR. JUSTICE McREYNOLDS, by direction of
the Court:
This cause was removed from the state court to the district
court, and comes here solely because plaintiff in error is
incorporated under an act of Congress. We go no further than to
inquire whether there is plain error.
Chicago Junction Ry. v.
King, 222 U. S. 222,
222 U. S. 224;
Texas & Pacific Railway v. Howell, 224 U.
S. 577,
224 U. S.
582.
The circuit court of appeals affirmed the judgment of the
district court, rendered upon a verdict, against the railway
company for the value of cotton destroyed by fire alleged to have
started from sparks and cinders negligently permitted to escape
from some passing locomotive. The answer of the company denied all
negligence, and expressly set up (1) that it exercised ordinary
care to procure and use upon all of its engines proper spark
arresters, and that these were in good repair when the accident
occurred, (2) that, without its consent, the cotton was stored on
the part of an open platform which
Page 235 U. S. 431
extended over its right of way, and was thus voluntarily exposed
near tracks along which twenty engines were operated every day.
While insisting that sparks or cinders from only three
identified engines could have caused the fire, the railway company
nevertheless introduced some evidence tending to show that all
locomotives were properly equipped. In rebuttal and over objection,
a witness was permitted to testify that, within a few days after
the accident, he saw engines, while passing near the scene, emit
large cinders, and the admission of such evidence constitutes the
principal subject of complaint here. In view of the pleadings and
the statements of preceding witnesses, this action was not
improper.
Texas & Pacific Railway v. Watson,
190 U. S. 287,
190 U. S. 289;
Goodman v. Lehigh Valley R. Co., 78 N.J.L. 317,
325-326.
The court was requested, but refused, to charge that, if the
railway had not assented to the storage of the cotton over its
right of way, and if in fact the fire started there, then it would
not be liable. This refusal is said to constitute plain and
material error, but we think otherwise in view of the long
continued use of the platform and the clear instruction in respect
of contributory negligence. The mere presence of the cotton on the
right of way without affirmative permission would not suffice to
relieve the company from the consequence of its own negligence.
Grand Trunk Railroad v. Richardson, 91 U. S.
454,
91 U. S.
471.
The other assignments of error are not much relied upon, and are
without substantial merit.
Judgment affirmed.
