Liverpool, London & Globe Insurance Co. v. Southern Pacific Co.

Negligence—Defective Spark-arrester—Subrogation of Fire Insurance Company.—A fire insurance company which has been compelled to pay insurance upon premises destroyed by fire caused by a defective spark-arrester upon an engine, may, by . subrogation to the rights of the owner of the premises, compel the railroad company to reimburse it for the amount of such payment if there was no contributory negligence upon the part of the owner.

Id.—Contributory Negligence—Use of Reasonable Precautions by Owner—Question for Jury—Where it appears that the owner of the burned premises did not directly know that the engine used was dangerous, and did not invite the use of that particular engine, and used counter-precautions against the risk of fire by employing a man to watch and guard against the danger, the question whether those precautions were such as reasonable care would dictate is for the jury.

Id.—Debatable Question of Prudence—If it is fairly debatable whether or not the ower of the premises acted with ordinary prudence, in the light of the knowledge possessed, the question of contributory negligence is not determined by the result, but is one of fact for the jury.

Id.-4Relation of Acts to Required Care.—The question whether • acts of the owner came up to or fell short of the degree of care •required of him by law, is one of fact for the jury.

Id.—Hypothetical Instruction as to Origin of Fire—Province of Jury.—Where the evidence as to the cause and origin of the fire was circumstantial, an instruction grouping the facts in ; hypothetical form, and telling the jury that if they believe these . facts, to be established by the evidence, a prima facie case is made out which would warrant the jury in finding that the engine of the defendant caused the fire, does not invade the ■ ■province of the jury, and is not argumentative or unfair.

Id.—Instruction as to Probability of Origin.—A portion of such-instruction that “if, upon the whole evidence, and taking into consideration all the conditions and circumstances surrounding the fire, you find it to be more probable that the fire was caused by sparks escaping from the swing engine than from any other cause, your finding upon that point, to wit, the origin of the fire, should be accordingly,” does not throw the question into the domain of conjecture and surmise; but the question as to the probability of the origin of the fire is properly left to the jury to determine from the circumstantial evidence.

Id.—Instruction as to Counter-precautions—Assumption of Undisputed Fact.—Where the court properly left it to the jury to determine the reasonable sufficiency of the counter-precautions used by the owner of the property, the assumption in the instruction to the jury of the undisputed fact that counter-precautions were used, is not objectionable, and could not injure the defendant.