
    Davis, Agent, and Dir. Genl. of Rds., v. Atlas Assurance Co., Ltd., et al.
    
      Railroads — Liability for damages by fire — Section 8.970, General Code — Duty of court to direct verdict, when — Operation of railroad not proximate cause of fire.
    
    In an action against a railroad company under Section 8970, General Code, to recover damages for loss of property hy fire, caused hy operating the railroad, the record disclosing by an agreed statement of facts and all the evidence, that the proximate cause of the fire was not the operation of the railroad, hut the act of the agent of the property owner, it is the duty of the trial court upon motion to direct a verdict in favor of the railroad company. Failure so to do is prejudicial error, for which judgment against the railroad company will be reversed.
    (No. 18868
    Decided May 19, 1925.)
    Error to the Court of Appeals of Cuyahoga county.
    This was an action brought in the court of common pleas of Cuyahoga county against the plaintiff in error to recover damages for fire caused by the operation -of the Erie Eailroad.
    The action was begun under favor of 'Section 8970, General Code, which provides for the liability of railroad companies for loss or damage by fire. The Great Western Oil Company’s property was burned, and the insurance companies that paid the loss have been subrogated to the rights of the oil company, and began this action, and appear herein as defendants in error.
    Appeal and Error, 4 C. J. § 3008 (1926 Anno.).
    
      The issues were made up by the answers of the Erie Railroad Company and James C. Davis, Director General of Railroads, as agent. The matter came on for trial before a jury, and the following stipulation, which contains the essential facts, was duly placed in evidence before the jury:
    “It is hereby stipulated and agreed by and between counsel of record, without prejudice to the introduction of further evidence, that, at the times stated in the petition, the plaintiffs and the defendant Erie Railroad Company were corporations, and that said defendant railroad was the owner of said line of railroad mentioned in plaintiffs’ petition, and which line of railroad at the times hereinafter mentioned was being operated by the federal government through and by Walker D, Hines, as Director General of Railroads; that the Great Western Oil Company owned the property which was situated and located and of values as alleged in plaintiffs’ petition, and that same was insured as alleged in said petition, and damaged by fire on November 1, 1919, to the amount and extent as alleged in said petition, and that, after said fire and prior to the commencement of this action, said plaintiff insurance companies paid to the Great Western Oil Company, under the respective policies, the amounts as set forth in said petition; that on the first day of November, 1919, while said two cars of high-test gasoline and óne ear of oil, described in plaintiffs’ petition, were situated upon the switch upon the land and right of way of the defendant Erie Railroad Company, adjacent to the buildings of the Great Western Oil Company, one Charles Shuttle, as an employee and gauger for the Great Western Oil 'Company, went, in the regular course of his employment, to get a sample of the gasoline in said ears, and measure them and obtain their temperature-, that he took off the cover of the dome of one of said cars, being car WOX 997, and dropped in his thermometer, whereupon the gasoline bubbled or foamed over and out -of same; that said Charles Shuttle tried to replace the cover on said dome, but was unable to do so, and was himself saturated with gasoline; that he got down from the car and ran or walked about 500 feet to the office, during which time an engine, operated by Walker D. Hines, as Director General of Railroads, in the usual and customary manner, and without any negligence on his part, or on the part of his employees operating said engine, approached on a track located upon the land and right of way of Erie Railroad Company, to within about 500 feet of said tank car of gasoline, when the fire in the fire box of said engine ignited fumes which were coming from said tank car of gasoline, from which said dome had been removed, and the flames followed the fumes back to said car and set fire to said gasoline therein, and burned and destroyed the same, together with the other car of gasoline and said car of oil mentioned in said petition, and, by reason of said fire, the storage buildings of the Great Western Oil Company, and its machinery therein contained, were damaged to the extent mentioned in plaintiffs’ petition; that said Charles Shuttle, on reaching said office, turned in a fire alarm. This is signed by Rees H. Davis, and Mooney, Bibbee & Edmonds, attorneys for plaintiffs, and Cook, McGowan, Foote, Bushnell & Lamb, attorneys for defendants.”
    The above stipulation being introduced in evidence, plaintiffs rested their case; whereupon a motion was made by the Erie Railroad to be dismissed as a party to the action, it appearing that the said railroad was being operated by and under control of the federal government at the time of the wrongs complained of, and a second motion was made on behalf of the Director General of Railroads, asking a directed verdict for the defendants. Both motions were overruled, whereupon the defendants introduced the testimony of three witnesses which bore upon the question of the construction of the gasoline tank ear, the dome and safety valve, the usual and proper method of relieving the pressure by opening the safety valve on the tank cars, the kind of gasoline that was contained therein at the time of the fire, the method of opening the safety valve, the removal of the dome cap, and the bubbling out of the gasoline when the superintendent of the Great Western Oil Company attempted to take the temperature of the gasoline and secure a sample thereof, finding said gasoline to be what he called “very wild.” This testimony further developed that the gasoline pressure in a tank car has a safety valve which is supposed to “pop” at about 25 pounds pressure; that gasoline cars are tested when they come in and before they are unloaded; and that the same was the ordinary and usual custom of dealers.
    At the conclusion of this testimony the defendants rested their case, and it appearing that there was no rebuttal testimony, the plaintiffs also rested; whereupon counsel for the defendants renewed the motions theretofore made in behalf of the defendants. The trial court took the view that there was nothing to be submitted to a jury, his language being:
    “In this case there is no material dispute about the facts; there is no material fact in dispute which I can submit to you for your determination.”
    And, apparently taking the view that under Section 8970, General Code, an absolute liability was created against the railroad company under the record made in the case, the court employed the following language:
    “If a fire from one of their engines starts a fire on their right of way, the statute says they are liable for the loss, so, as soon as the clerk has the verdict prepared, each of the jurors will be given am opportunity to sign it.”
    Whereupon counsel for the defendants excepted to the overruling of both motions, and excepted to the direction of a verdict for the plaintiffs. Motion for a new trial was overruled, exception noted, .and error prosecuted to the Court of Appeals, in which court the judgment of the court of common pleas was affirmed. Error is now prosecuted to this court to reverse the judgment.
    
      Messrs. Cook, McGowan, Foote, Bushnell & Burgess, for plaintiff in error.
    
      Messrs. Mooney, Bibbee & Edmonds, and Messrs. Davis, Young & Vrooman, for defendants in error.
   Day, J.

The crucial point in this case is the construction to be given the language of Section 8970, General Code:

“Every company * * * operating a railroad * * * shall be liable for all loss or damage by fires originating upon the land belonging to it caused by operating such road.”

The petition is based upon the above-noted section, and the rights of the plaintiffs in the original action are to be measured by the scope of that, section of the General Code. The answer of the Director General, having made certain admissions, contains this averment:

“Further answering, defendant denies each and every allegation in plaintiffs.’ petition mentioned not herein specifically admitted to be true, and further denies that there was any negligence on his part, but says that the sole proximate cause of the fire was the negligent act of an employee of the Great Western Oil Company in removing the cap from the top of the gasoline tank car, which allowed gasoline fumes to escape and become ignited, when he knew or should have known that it was unsafe so to act.”

Adverting to Section 8970, we find the following language:

“The existence of fires upon the railroad company’s lands is prima facie evidence that they are caused by operating such railroad.”

And Section 8972, General Code, provides, in substance, that it shall not be considered negligence by the owner or occupant of property injured by fire that he used it, or permitted it to be used and remain as though no railroad passed through or near such property; the section, however, containing this exception:

“But this rule shall not apply in cases of injury by fire to personalty which at the time was on the property occupied by such road.”

We are therefore of opinion that the turning point of this case must be what is meant in the statute by the expression, “caused by operating such road.”

The Act of April ‘26, 1891, now 'Section 8970, General Code, has received the interpretation of this court heretofore in B. & O. Ry. Co. v. Kreager, 61 Ohio St., 312, 56 N. E., 203, wherein it was held that by virtue of the statute there is imposed “upon every railroad company operating a railroad or part thereof in this state absolute liability for loss or damage by fire, originating on its land, caused by operating the road; and the fact that the fire originated on the land of the company is made prima facie evidence that it was caused by operating the road. In an action for such loss or damage, it is not necessary to allege or prove negligence on the part of the company; nor is the absence of such negligence a defense.”

It will be noted that this announcement of the law centers ‘about the expression “caused by operating the- road,” and in the opinion of Williams, J., at page 327 (56 N. E., 204), an indication of the scope thereof is given in the following language :

“A sufficient reason, if that was necessary, for imposing the rule of absolute liability which renders negligence of the railroad company, or its freedom from negligence immaterial, may be found in the fact that such company, having complete control of its right of way, may readily keep it clear of combustible substances, from which, if allowed to remain, there is, in the operation of the road, constant and imminent danger of fires which others cannot prevent, and against which they may be unable to protect themselves.”

We think this is a very good statement of the reasons underlying the passage of the act and an expression of circumstances under which it is most applicable.

Does the proximate cause of the fire in this case come within the scope of the language of the section in question or the interpretation thereof as indicated in Judge Williams’ opinion?

The proximate cause of a result is:

“That which, in a natural and continuous sequence, unbroken, by any new cause, produces an event, and without which the event would not have occurred. The proximate cause is that which is nearest in the order of responsible causation; that which stands, next in causation to the effect, not necessarily 'in time or space, but in causal relation.” Bouvier’s Law Dictionary.

Was the operation of this locomotive at a distance of 500 feet from the gasoline tank car the proximate cause of the fire? Would the fire have occurred, unless there had been some active participation upon the part of the Great Western Oil Company, through its agent, the superintendent, in releasing the fumes and taking .the dome cap off the tank car, thus permitting the gasoline to bubble up and run over, resulting in the fumes of the gasoline following down the track toward the approaching engine? We think not, and but for such, action, up on the part of the agent of the Great Western Oil Company the operation of the railroad, in so far as the engine in question was concerned, could have continued with safety.

Now the existence of fires upon the railroad company’s land is prima facie evidence only that they are caused by operating such railroad, and a prima facie case may always be rebutted and overcome, if possible, by the party against whom the prima fade case operates. The defendant Director General of Eailroads had affirmatively averred that:

“The sole proximate cause of the fire was the negligent act of an employee of the Great Western Oil Company in removing the cap from the top of the gasoline tank car, which allowed gasoline fumes to escape and become ignited, when he knew or should have known it was unsafe so to act.”

This vital question,' then, whether the proximate cause of the fire was the operation of the railroad, or the act of the Great Western Oil Company by its agent in releasing the fumes from the gasoline tank car and permitting the gas to run over, was a question of fact, and one ordinarily to be submitted to a jury, but, in the case at bar, one upon which, under the stipulation and evidence, the minds of all men must reach but one conclusion. “What was the proximate cause of an injury is usually a mixed question of law and fact; but where the controlling facts are conceded or found it is a question of law for the court.” L. S. & M. S. Ry. Co. v. Liidtke, 69 Ohio St., 384, 69 N. E., 653.

Under the stipulation or agreed statement of facts and the evidence disclosed by this record, it clearly appears that the proximate cause of the fire in question was the act of the agent of the Great Western Oil Company in removing the cap from the dome of the tank car, allowing the gasoline to escape and the fumes to find their way 500 feet down the track to the approaching engine, and the fire was not caused by the operation of the railroad within the meaning of Section 8970, General 'Code. The fire in the fire box of the locomotive was of itself harmless, so far. as the operation of the railroad causing the fire was concerned. The act of the agent of the Great Western Oil Company in permitting the gasoline to escape, and its fumes to come in contact with the fire in the locomotive, was the proximate cause of the fire. No fire escaped from the fire box of the locomotive.

The record so showing, it is our opinion that it was the duty of the trial court upon the motion of the defendants to have directed a verdict in their favor; that his refusal so to do was prejudicial error; and that the Court of Appeals erred in affirming the judgment of the court of common pleas. For these reasons the judgment rendered herein is reversed, and, proceeding to enter the judgment that should have been entered by the court of comm on. pleas, the motion of defendants below for a directed verdict in their favor is sustained, and final judgment rendered on behalf of defendants.

Judgment reversed.

Marshall, C. J., Jones, Allen, Kinkade and Robinson, JJ., concur.  