Smyth v. Stockton & Copperapolis Railroad

ROSS, J. The plaintiff sued to recover of defendant damages for the'destruction by fire of certain property alleged [359]to have been communicated by sparks emitted from one of defendant’s locomotives. As to whether the engine was in proper order and was properly managed by the employees of defendant at the time in question, the testimony on behalf of the respective parties differed. Upon the conclusion of the evidence the defendant requested the court to charge the jury, among other things, that if they believed from the evidence “that the damages claimed by the plaintiff were caused by fire escaping from defendant’s engine, and find further that the engine was in good order, properly constructed, and supplied with the best appliances in use to prevent the escape of fire, then the defendant was not guilty of negligence in such escape of the fire, and is not liable, unless the fire escaped through the negligence of the agents and servants of the defendant in managing the engine and machinery.” This instruction was refused. In view of the testimony in the case it ought to have been given: Shear. & R Neg., 3d ed., secs. 332-334, and authorities there cited.

Judgment and order reversed and cause remanded for a new trial.

We concur: McKinstry, J.; McKee, J.