Mellinger v. Pennsylvania Railroad

Citations

• 229 Pa. 122
• 78 A. 66
• 1910 Pa. LEXIS 559

Syllabus

<p>Negligence — Railroads—Fire—Sparks from engine — Circumstantial proof,</p> <p>1. In an action against a railroad company to recover damages due to a fire alleged to have been caused by the negligent operation of an engine the case is for the jury, where plaintiff adduces evidence to show that on the day of the fire defendant’s train drawn by an engine whose number was stated passed the premises puffing hard, while the wind was toward plaintiff’s yard; that about fifteen minutes later a fire was discovered on the roof of a shed; that the same engine on the train was seen throwing out sparks “large as a hazel-nut” about one hour later, at a distance of two and one-half miles from the pláce of the fire, that sparks of this size could not pass through an ordinary arrester in good condition and properly adjusted, and that the engine had large holes in the stack.</p> <p>2. In such a case it is not error to permit the plaintiff to show that the engine which had passed the plaintiff’s property fifteen minutes before the fire was discovered, threw out large sparks two and one-half miles from the place of the fire about one hour after the fire had started.</p> <p>3. In an action against a railroad company to recover damages for destruction of property by sparks, the plaintiff may recover, although his evidence is wholly circumstantial that a particular engine started the fire, and he produces no witness who actually saw the fire communicated by the engine to the building.</p> <p>Evidence — After discovered evidence — New trial — Courts—Abuse of discretion.</p> <p>4. Where after discovered evidence is of a cumulative nature and it is problematical whether it would have made any change in the result, the question of a new trial is for the trial judge, and in the absence of abuse his discretion will not be overruled.</p>