
    The Baltimore and Ohio Railroad Company vs. Nimrod O. Shipley.
    
      Moaning of the expression “ Without Negligence," as used in sec.,, 1 of 'Art. 77, of the Code — Care and diligence required of a Railroad Company, to avoid Injury to property along the line of its road — Jury not to 'vhfer Negligence — Estimate of the value of Property to íe based ’Upon Witness own knowledge — Practice— , Inadmissible Evidence — When a person is entitled to recover the Value of his- proporty destroyed by d‘ Rctilroa,d -engine; an,d. when riot— Proximate cduse — Degree of Evidence necessary in. an action-’against a' Railroad Company, to recover for the destruction of the Plaintiff's property by Fire from the Defendant’s-Engine.-' ** - - ' - '
    The expression, “without negligence" used in the first section of Article. W of the Code, moans the exercise 'of rbasonáble care and diligence on the pari of, the railroad company,-to avoid, as far as'practicable, injury to property along the line of its road; that is to say,' by having 'its engines properly constructed and in good-condition, and placed’ in the charge of skilful .and prudent persons, ahd Managed by such persons in á skilful and prudent manner, and in-keeping its road-bed in proper bondition,’ by preventing the negligent aecixmulation.of combustible material. But a, railroad company is, not obliged to keep, men stationed along the line'of its road either to guard against, or.to extinguish fires which may happen.
    And in an action against a railroad company to recover damages for , injury done the plaintiff’s property by fire from the engines of the defendant, the jury are not at liberty to infer negligence oh the part of the defendant, from the absence, at the time of the fire, of the hands employed for the purpose of repairs on the section of the rortd Where the lire occurred, and the. failure by the company to assist in extinguishing the fire.
    In an action against a railroad company to recover for the destruction of the plaintiff;’s property by fire from the defendant’s engines, a witness testifying as to the value of the property destroyed, cannot base his estimate of the same upon the representations of others — it must be based upon his own knowledge.
    Where a question- improper in itself is asked, objection thereto must be made before it is answered, but when the question is a proper one and the answer thereto improper, it is the duty of the Court, on motion, to exclude the answer from the jury.
    In an action against a railroad company for injury done by fire from its engines to the property of the plaintiff, evidence as to the usage of the defendant in regard to the construction and condition of its engines, is inadmissible; the defendant must prove that its engines were properly constructed and in good condition; but such proof is not to be'restricted to their condition on the day of the fire.
    Where property is destroyed by fire from the engine of' a railroad company, the party injured, in an action against the company, is entitled to recover the value of the property destroyed, unless the defendant can- show that the fire was occasioned without any negligence on its part. — On the other hand, if it be' shown that the defendant exercised reasonable care and prudence— •that its engines were properly constructed and in good condition, and managed by competent and skilful persons in a careful and prudeut manner, and its road-bed was in proper condition, then the plaintiff is not entitled to recover.
    In an action against a railroad company to recover damages for the destruction of the plaintiff’s property by fire from the engines of the defendant, the fact that the fire began on the road-bed of the defendant, and thence spread to the property of the plaintiff, is no bar to the right of the plaintiff to recover, the destruction of his property being the natural and necessary consequence of the fire kindled on the road-bed of the defendant.
    In an action against a railroad company to recover damages for the destruction of the plaintiff’s property by sparks emitted from the engines of the defendant, to entitle the plaintiff to recover,- he is not required to prove that the fire by which his property was destroyed, could not have occurred in any other way than from sparks of fire emitted from the defendant’s engines; while bound to prove to the satisfaction of the jury that the fire was occasioned by the negligence of the defendant, he is not bound to prove this beyond a reasonable doubt, as applied to the trial of criminal causes.
    Appeal from the Circuit Court for Frederick County. This was an action on the case, instituted by the appellee under Article 77, of the Code, to recover damages for tbe destruction of his property by fire from the engines of the appellant. The track of the defendant ran through the farm of the plaintiff, some three or four hundred yards on the north side, and a still greater distance on the south side. On the 23rd of September, 1871, a fire occurred on the plaintiff's farm, destroying a tobacco bouse filled with hay, a large number of tobacco sticks and fence rails ; and about fifty or sixty acres of clover on the land in seed. Evidence was offered tending to show that the fire which destroyed the plaintiff’s property, originated from the engines of the defendant. Sundry exceptions were taken by the defendant. The jury rendered a verdict in favor of the plaintiff for $1145, and judgment was entered accordingly. The defendant appealed.
    The cause was argued before Bartol, C. J., Bowie, Alvey, and Robinson, J.
    
      Charles W. Boss and John K. Cowan, for the appellant.
    
      Francis Brengle, for the appellee.
   Robinson, J.,

delivered the opinion of the Court.

This suit was brought to recover damages for the destruction of the plaintiff’s property by fire from the engines of the defendant.

The question presented by the first exception, is whether it was competent for the plaintiff to prove that none of the hands or employes of the defendant were present aiding and assisting in putting out the fire, the plaintiff stating at the time that he proposed to follow it by proving that a gang of ten or twelve men employed for the purpose of repairs on the section of the road where the fire occurred were absent not on business of the Company. This evidence was offered to prove negligence on 1 thé'párt' of the .defendant.. In .this State, where property ’ is' destroyed* hy fire from a locomotive engine,--tbe burden <.of"p/r'6of[is upon the company to show that ■ the .fire was 1 "óccasidnéd ‘^.without negligence/’ . Avtr 77, sec,-l,- Code. 11Without negligence, as ^secf in,¡filie -statute,1 means - the 1 exercise of'reasonable care. and. diligence on the part of ' the' co'tnpariy,' to avoid;as far As practicable,--injury-t-o prosper ty'along the line of its-rpad,; that is. to say,--by- having ‘its edgi'nes -properly constructed ¡and .in,good- condition, ‘■ahd pl'ace'd in'the charge.pf .sbilfpl,and', prude.rit persons, •’and rhahaged by such '.person? iin a skilful -and .prudent 'rhahher'; and'in keeping its rpacj-hpd in proper condition 'by preventing 'the negligent pccupiulation ofi combustible diatéfiál. But a(.company,,is:.nofi. obliged -to keep men statiódéd along the line of ut^road,, either -to guard against of to exliriguish fires ,whigh,.may -happen-.. ! With trains' p'ássing almo,?t at every hour-on- many -roads; add ■frith1 d rapidity unknown to.any other, power,!ife would be utterly impracticable, to keep mpu stationed-at .every point wh'efé a" fire .may occur. . -To.impose* süch a.dúby would not only be unreasonable in ifs.elf, hut it .would in fkct'1 diake railroad companies^ .insurers* against loss <by fife, of all the property along .the, lin.e; ofi.their, roads. The proof thus offered, was calculated; to .mislead1 'the jury', by leaving’them to, infer.tfiat-the absence-of the hands 'employed for the purpose, pf.repairs- on the-sbctron of tile" róád 'wnere the, fire occprrecl, aud- the.failure on-their' pa’r't 'to assist in extinguisjii.ng; -fihe.same, -was evidfence of" negligence, on the part, of the,defendant.- * -; -

The ’Cburt 'erred al?o we, think, ip. refusing to ^strike 1 oú't'So'm'üch óf’the*.testimony of, tpe, witnesses*-Rice :and'Sálmóh,"in regard* to | the, valu,a.tion , of.-the*-propertyde^ stfoye'd,‘as'was Based upon.thp ..representations ’of*other'persons',1 and'nol upop their.qwn kpowledge, ■- T-hes'e wit- •’ ne'sses’had' testified in regard to an appraisement .of the u property; made 'By them previous to the trial, hut upon cross-examination it turned out, they had no personal .knowledge; .as =to paid Of the property included in the appraisement, -and ■ that their 'valuation in respect, to ^he .same, was..based entirely-upon the representations of other persons... We' knew of .ho' rule'of' evidence which permits a witness, to testify ’in'ífegáfd' id the value of pro- . perty.,.based upon, the mere hearsay declarations of others.

.[Tbe counsel, are -in-'error in: supposing1 the motion to ■strike, out-theeanswer1 of 'the' witnesses came too ^ate. .Where.a question, improper-in-itsdlf, .is asked, objection thereto must-be made before it ismiiswe'red, but where the .question,i$ a properione', and the a’n'swci1 'thereto improper, (it.,is; the duty .of the. Court; on haolion, to exclude the qnswer from the jury.‘ ’

It was¡ urged, however, that the error of the Qourt in tlijs respect constitutes n'o ground for reversal of the judgment, because it,is contended that 'the value of the property, destroyed iwas- fully proven by 'other' witnesses. I>ut in a case of this- kind,.' where the jury is to ascertain the value of..the property 'in’questibip it is impossible for, qs to, sqy how far,, or .to What extent, "their determination, qf the.sqme-was. affected by the'evidence thus objected to, qnd,w,hich;,ought to have béen excluded. ‘

. The, objection.’to'the que’stio'n as1 to'the usage of-the: defendant tb’the construction 'and- condition op. i^s. engines,.was..properly sustained'.’ ‘If the' property of the plaintiff .was destroyed by1 fife'from the engines of the defendant,, it, w.as incumbent bn‘the¡ Tatter'to prove that, it(s engines were properly1 eohstfucted’ and in sgood condition, a,nd .evidence of mere usage oh the part of the defendantjn .regard'to'the1 samé, would.'iiot necessarily prove, nqr was it-tbe :best evidence to ptóve, tbe actual constructiqn, and .condition of-its engine’. ’ The usage of the company migh t require; that''all'the engines used c>n its road should be ^constructed in;a certain manner,’ but it would by no.mbans follow that1 the requirements of the company in this respect were complied with, by those to whom the duty of construction was confided.

In sustaining the objection to this question however, the Court erred in restricting the defendant to the proof of the condition of its engines on the day of the fire. The fact that they had been examined even on a day prior to the fire and found to lie in proper repair, although not perhaps conclusive proof of their condition on the day of the fire, was evidence, we think, to go to the jury to aid them in determining their actual condition on the day the fire occurred. The weight to be given to such evidence was a matter exclusively for the jury.

The law governing the case, we think, was fairly submitted to the jury. If the property mentioned in the declaration was destroyed by fire from the defendant’s locomotive, the plaintiff was entitled to recover the value of the same, unless the defendant proved to the satisfaction of the jury, that' the fire was occasioned without any negligence on its part. On the other hand, if the jury should find that the defendant exercised reasonable care and prudence, — if its engines were properly constructed and in good condition, and managed by competent and skilful persons in a careful and prudent manner, and its road-bed was in proper condition, then the plaintiff was not entitled to recover.

The defendant’s second, fourth, fifth, seventh, eighth and tenth prayers were properly rejected, because they required the Court to instruct the jury that there was no negligence on the part of the defendant, if its engines were properly constructed and provided with suitable fixtures for preventing injuries by fire, and were placed in charge of prudent and discreet persons. Now, it does not' necessarily follow, because the engines were placed in the hands of competent and discreet persons, that such persons used and managed them in a skilful and prudent manner. A person, ordinarily prudent and careful, may do an imprudent and careless act. In addition to the facts enumerated in the defendant’s prayers, and upon which it relied as proving the exercise of reasonable care on its part, they should have submitted to the jury the question as to whether the persons having charge of the engines, used and managed them in a prudent and careful manner.

The question presented by the sixth and sixteenth prayers of the defendant, as to the right of the plaintiff to recover if the jury should find the fire began on the roadbed of the defendant, and then spread to the land of the plaintiff, has been fully considered by this Court in The Annapolis and Elkridge Railroad Company vs. Gantt, ante, p. 115. In this, as in that case, the land of the plaintiff adjoined the railroad bed of the defendant, and, according to the rule there laid down, the destruction of the plaintiff’s property was the natural and necessary consequence of the fire kindled on the road-bed of the defendant. The fact then that the fire may have begun on the road-bed of the defendant, and thence spread to the adjoining property of the plaintiff, does not bring this case within the well established rule, that a party cannot recover for injuries resulting remotely from the wrongful act of the defendant, — “ Causa próxima, non remota spectator. ”

The fourteenth and fifteenth prayers were also properly rejected. There is a well recognized distinction in regard to the degree or quantity of proof in the trial of civil and criminal causes. In the latter, the presumption of innocence is so strong, that the law in favor of life and liberty requires the fact of criminality to be established, to the exclusion of every other reasonable hypothesis, or, in other words, to a moral certainty. In mere civil disputes, however, where no violation of the law is in question, and no legal presumption operates in favor of either party, the preponderance of probability, due regard being had to the burden of proof, may constitute sufficient ground for a verdict. In this case it is not alleged that the property was wilfully burnt by the defendant, and although the plaintiff' was bound to prove to the satisfaction of the jury, that the fire was occasioned by the negligence of the defendant, yet he was not bound to prove this beyond what is termed a reasonable doubt, as applied to the trial of criminal causes.

(Decided 16th January, 1874.)

We find no error in the rejection of the seventeenth prayer. There was evidence legally sufficient, tending to prove that the fire originated from the engines of the defendant, and the Court properly refused to take the case from the jury.

For the reasons thus assigned the judgment below will be reversed and a new trial awarded.

Judgment reversed and new trial awarded.  