Richmond v. Oregon R. & Nav. Co.

Citations

• 137 F. 848
• 70 C.C.A. 378
• 1905 U.S. App. LEXIS 4213

Syllabus

<p>1. Railroads—Fires—Defective Appliances—Negligence.</p> <p>• .Where a fire was set by sparks emitted from one or both of the locomotives hauling a train, in April, 1903, when it was very dry, and one of the locomotives was still equipped with a perforated plate instead of a wire netting spark Arrester, which plates were only Used in the winter time when there was no risk from fire, and the plate which had been in the other locomotive had been changed for a netting on the morning of the fire, the question of defendant’s negligence was for the jury..</p> <p>[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1742-1744.]</p> <p>2. Same—Appeal—Theory of Cause.</p> <p>Where, during the trial of an action against a railroAd company for fire alleged to have been caused by certain locomotives, plaintiff’s counsel, on being asked which of the two engines he claimed set the fire, replied that it was one of two engines attached, to a certain train, and defendant introduced evidence concerning the spark-arresting equipment of both of such engines, it was not entitled to claim on appeal that the. question of negligence- with reference tó one of the engines was not in ■ issue.</p>