St. Paul Fire & Marine Insurance v. Southern Pacific Co.

RICHARDS, J.

This is an appeal from a judgment and order denying a new trial in an action wherein the plaintiff recovered judgment in the sum of $350 damages for the alleged destruction of an automobile by fire, caused through the defendant’s negligence. The case was tried by the court without a jury.

The evidence as to the origin of the fire, and also as to the alleged negligence of the agents of the defendant, as the result of which it is claimed to have spread to the warehouse in which the plaintiff’s automobile was stored, was conflicting, but we think the following facts are fairly deducible from the record before us:

The plaintiff’s assignor, L. H. Stevens, was, in the month of June, 1912, the owner of an automobile which he kept in a certain warehouse in the city of Hollister, and which was located along the line of and adjacent to the right of way and railroad tracks of the defendant in said city. Defendant through its agents and employees undertook to bum off the grass along its right of way in the vicinity of this warehouse. They ceased this work about 4 o’clock in the afternoon, and went away after apparently extinguishing the fires. About 5 o’clock Mr. Newton, an employee of the Hollister Warehouse Company, noticed that the men who had been attending to the

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fires were gone, but that there were .still a few smoldering fires along the defendant’s right of way which he deemed dangerous to be left, so he took a watering can and went over and extinguished these, or at least thought he had done so. On the following morning, however, about 5:30 o’clock, a man named Tennant, not an employee of the defendant, noticed smoke arising from a pile of sawdust near the warehouse, and also observed a line of burnt grass extending from the defendant’s tracks to the sawdust pile, where he found a smoldering fire, which blazed up when stirred and which had charred the sill of a box factory from which the sawdust had accumulated, and which factory adjoined the warehouse. He put water on the fire, and was satisfied that he had put it out, but at 10:30 o’clock of the same morning flames burst forth in the box factory, which spread to the warehouse and destroyed the automobile of the plaintiff’s assignor. There is also some evidence that during the afternoon a fire had been burning on the other side of the defendant’s right of way and about forty or fifty feet from the warehouse, but there was no evidence indicating that this fire had extended across the defendant’s tracks.