
    PHILADELPHIA AND READING R. R. CO. VS. KERST.
    A verdict for damages for burning a house was sustained where plaintiff’s witnesses testified that quantities of large sparks were thrown out by defendant’s engine.
    Negligence máy be inferred from the fact that the engine threw out large sparks.
    Error to Common Pleas of Berks County. No. 328, January Term, 1884.
    This was an action of trespass brought by John C. Kerst against the Railroad Company to recover damages for the burning' of his house, which was situated some distance below Monocacy Station at a distance of abóut forty feet from the railroad track. Four witnesses for the plaintiff testified that they saw from Monocacy Furnace, half a'mile off, an engine pass northward, throwing out a great number of sparks variously estimated at from one inch in diameter to the size of hen’s eggs. The wind was blowing toward the house and the roof was discovered to be on fire about five minutes after the engine passed. The engine was proved to be No. 62 which passed Monocacy, northward with a train of empty coal cars from Port Richmond to Palo Alto. Employees of the company testified from their books that the spark arrester was in proper condition and "was of approved pattern. The Court charged the jury that if they found that the fire, was communicated from this engine, they could find for the plaintiff, only in case they further found, that either the engine was not provided with an improved spark arrester; or that it was not in good condition; or that the train was run in such a careless and negligent manner as to cause the sparks to fly out. "Witnesses on behalf of the defendant testified that the mesh of the spark arrester such as were used on this engine, had an opening of one-eighth of an inch. They produced a spark arrester of the same kind in Court. The Court refused to direct, a verdict for the defendant; The jury rendered a verdict for the plaintiff for $900. The company then took a .writ o| error, complaining of the action of the Court in allowing the jury to infer negligence on the part of the company from the testimony of witnesses who saw sparks when they were half a mile off.
    
      Messrs. G. F. Baer and J. Snyder, Esqs., for plaintiff in error,
    cited; Rider vs. Wombell, 4 L. R. Exch. 32; Howard Express Co. vs. Wile, 64 Pa. 201; Phila. & R. R. R. Co. vs. Yerger, 73 Pa. 121; Turnpike Co. vs. Railroad Co., 54 Pa. 345; Railroad Co. vs. Schultz, 93 Pa. 344. The Court should not have allowed the jury to guess that the engine was negligently run, simply because men half a mile off saw sparks, when the train men swore that proper care was taken.
    
      H. W. Bland, Esq., for defendant in error,
    argued that the spark arrester of engine No. 62 should have been produced in Court and not a new one of a similar pattern. Negligence may be inferred from the fact that large sparks were thrown out; Babcock vs. Chicago & N. W. R. R. Co., 11 American and English R. R. Cases 65. The instructions of the Court below were proper; Lehigh Valley R. R. Co. vs McKeen, 90 Pa. 127; P. & R. R. R. vs. Schultz, 93 Pa. 341; Kay vs. Penna. R. R. Co., 65 Pa. 274; McCully vs. Clarke, 40 Pa. 408; Piggott vs. R. R. Co., 54 E. C. L. R. 228.
   The Supreme Court affirmed the judgment of the Common Pleas on March 17th, 1884, in the following opinion:

Per Curiam.

There was no error in refusing to take this ease from the jury. The means of knowledge of the witnesses of the facts to which they testified as well as to their credibility, were all proper for the jury to consider. If in fact the engine threw out sparks or balls of fire of the great size mentioned by some of the witnesses, it was clearly evidence to justify the jury in finding the engine was carelessly and negligently operated, or that the spark arresters were defectively constructed or out of repair. The apparently irreconcilable evidence was properly submitted to the jury in a correct and clear charge.

'Judgment affirmed.  