Smith v. Chicago, M. & St. P. Ry. Co.

Citations

• 4 S.D. 71
• 55 N.W. 717
• 1893 S.D. LEXIS 45

Syllabus

<p>1. A special finding of a jury that the negligence of the defendant which caused the damage to the plaintiff was the condition of its locomotive engine is within the allegations of the complaint, alleging that “the defendant carelessly and negligently ran an engine along its line of railway, which engine then and there was so negligently and insufficiently constructed and equipped, and then and there was so negligently and carelessly operated by the defendant, that it emitted and threw out large sparks of fire.”</p> <p>2. An allegation in plaintiff’s complaint that the defendant’s engine “was so negligently, carelessly and insufficiently constructed and equipped” as to emit and throw out large sparks of fire properly included the condition of such engine for arresting sparks, whether its defects in that respect resulted from its original construction, or from defects caused by use, wear or injury to its parts.</p> <p>3. Evidence tending to prove that a locomotive engine which caused a fire destroying plaintiff’s property also set two other fires about the same time is not necessarily overcome by evidence that the engine was properly equipped with the best known appliances for arresting sparks, was in good condition, and managed by a competent and trustworthy engineer, as a matter of law. Such evidence tends to raise a conflict in the evidence as to the negligence of the defendant, which must be determined by the jury, and this court cannot say that the jury from such evidence, were not justified in finding that the engine was not in good condition.</p> <p>4. Whether or not evidence tending to prove the setting of two other fires about the same time by the engine that caused the destruction of plaintiff’s property is admissible as tending to prove negligence on the part of the defendant is a question of law, for the court; and an instruction by the court to the jury that such evidence is admissible for the purpose stated is proper, and the fact that this instructi