is in accordance with the rule that if a master orders a thing done he is responsible for the manner in which it is done.44 A railroad company cannot be indicted criminally for an assault and battery or manslaughter committed by one of its employees. 45 Evidence. 211. In an action by a passenger against a railroad company to recover damages for personal injuries alleged to have been caused by a defective rail, declarations of the track foreman, who was a witness, may be admitted for the purpose of enabling the jury to judge of the credibility of the witness and not for the substantive purpose of showing that the track was in bad condition at the time the accident occurred.46 Where a passenger was injured by falling into a culvert while walking upon the tracks after alighting from a train, evidence that the culvert was repaired after the accident is inadmissible, where there is nothing to show that the railroad company failed in any duty to the passenger while he was alighting from the train.47 44 Duggan v. Baltimore & Ohio R. R., 159 Pa. 248 (1893.) 45 Commonwealth v. Punxsutawney Street Pass. Ry. Co., 24 Pa. C. C. R. 25 (1900); 31 Pitts. 42 (1900.) 46 Dampman v. Pennsylvania R. R., 166 Pa. 520 (1895.) 47 Fisher v. Paxson, 182 Pa. 457 (1897.) 212. If a railroad company constructs a culvert so unskillfully and negligently as to be insufficient to vent the ordinary high water of a stream, it is liable for the injury thereby caused.1 A railroad company in constructing a culvert is only bound to provide for ordinary high water, and not for extraordinary freshets. The question whether it has so constructed the culvert as to carry away water in an ordinary flood is for the jury.2 The jury in considering what is an extraordinary flood in a particular stream, must consider what should be expected in that particular stream, taking into account its character, the adjacent territory and previous floods. Land was injured by a flood caused by the breaking of a culvert. Defendant denied its liability for the injury, alleging that the flood was an extraordinary one, and therefore one which they were not bound to anticipate in the construction of the embankment and bridge. The evidence for plaintiffs, although conflicting, tended to show that in a period of fortytwo years, including the one in question, there had occurred four floods in this creek of about equal force and volume of water. It was held that the finding of the jury that the flood was an ordinary one and that defendant was liable for its failure to maintain its culvert so as to resist ordinary floods would be sustained.8 Improper Construction of Bridge. 213. Where land is damaged by reason of an ice gorge at a I Brown v. Pine Creek Railway Co., 183 Pa. 38 (1897.) bridge of a railroad company, the fact that the ice gorged at the bridge and backed the water on plaintiff's property is not sufficient to charge the railroad company with negligence; plaintiff must go further and show that the railroad company did not construct the bridge with proper care and skill, having regard to the land owner above and below. Plaintiff's evidence showed that the width of the waterway under the bridge was more than double the width of the stream; that this width was ample for all ordinary freshets and floods; that this was an ordinary freshet, but the ice was of more than ordinary thickness; that it began piling up above the bridge; that the gorge reached a height of fifteen feet; that in its movement down the stream, it gathered bulk so that when it reached the bridge its mass was so huge that it rested against the bridge for three hours, and that in this time the water of the stream was backed and injured plaintiff's property. The court in approving a non-suit entered by the lower court said: "The railroad company had provided for every ordinary contingency of flood and ice; it had not provided for this extraordinary one, the accumulation of a large body of ice, thousands of feet above and floating down in one great mass upon the bridge; nor did ordinary care require it to provide for such a contingency. While it was required to provide for ordinary freshets and the ordinary floating ice, it could not in the exercise of ordinary foresight have provided for this. If an ordinary flood had detached and floated down a house or other building, it would not have been negligence not to provide a span high enough and wide enough for a house to pass through; nor if, as sometimes occurs, a large mass of drift, consisting of trees and stumps, should have floated down and choked the flow of the stream at the spans, could they have been expected in the exercise of ordinary care to provide for such a circumstance. They were not bound to extraordinary prevision; the most competent engineer was not bound to see what was unseeable; he was only bound to foresee and provide for the volume and destructiveness of the ordinary flood and the ordinary force and bulk of floating ice."4 4 Berninger v. Sunbury, Hazleton & Wilkes-Barre Ry. Co., 203 Pa. 516 (1902.) 214. In an action against a railroad company to recover damages for the burning of plaintiff's barn, with its contents, caused by sparks from the railroad company's engines, the burden of proof is upon the plaintiff to prove negligence on the part of the defendant and if the evidence is contradictory and conflicting the case is for the jury. Plaintiff's wife testified that she was standing on the porch of her house near the barn and saw the particular engine which was throwing out great volumes of smoke pass; that in the smoke which passed over the house were great large particles of burnt cinders as large as a finger end; that the smoke had just cleared away when she saw the fire in the barnyard. The defendant offered evidence to show not only the want of probability of the facts testified to by plaintiff, but of the impossibility of sparks of the size stated being thrown out by the engine, which was provided with the latest approved and best designed spark arrester in use. It was held that the case was for the jury.1 The negligent accumulation of combustible rubbish on the right of way to which fire may be communicated by sparks and from which fire may be communicated to neighboring woodlands may be the basis of recovery for the destruction of such woodlands. Plaintiff's woodland was burned and the plaintiff alleging negligence in the construction and management of the de I Matthews v. Pittsburg & Lake Erie R. R. Co., 18 Super. Ct. 10 (1901); affirming 24 Pa. C. C. R. 370 (1900.) fendant's engines, and also that the defendant negligently permitted combustible material to accumulate on its right of way, brought an action to recover damages for the burning of his woodland; the evidence showed that near the plaintiff's woodlands and on the defendant's property weeds, briars and bushes had been cut and allowed to remain, and this accumulation had been added to by leaves blown by the wind, and caught in the brush. A witness for the plaintiff testified that the fire started in the accumulation of rubbish; that it began after a train had passed, and that at the point where the fire started there was a heavy grade and that the engines going up the grade emitted sparks and cinders. Defendant's witnesses testified that the fire originated on the plaintiff's land and spread towards the railroad. There was no evidence of the defective construction of defendant's engines. It was held that the case was for the jury and a verdict and judgment for plaintiff was sustained upon appeal.2 The mere fact that the fire originated on the right of way, or that weeds and grass cut in the autumn had been allowed to remain on the right of way during the winter, is insufficient to convict the company of negligence. If it appears that the engine that passed over the road a short time before the fire was provided with an approved spark arrester which was in good order at the time, and no positive proof of negligence is shown, the company cannot be held liable.3 It may be shown that the locomotive, which was alleged to have caused the fire, had on various occasions thrown out sparks of unusual size.1 Where plaintiff's property was set on fire by sparks from a locomotive, the case is for the jury where the evidence submitted by the plaintiff tended to show that the sparks which caused the fire were emitted from a particular engine; that the same engine, on the same day, and within a distance of three miles, set eleven other fires on farms adjoining or crossed by the railroad and that some of these fires were set by sparks thrown from three to four rods beyond the right of way; and 2 Stephenson v. Pennsylvania R. R., 20 Super. Ct. 157 (1902.) 3 Taylor v. Pennsylvania Schuylkill Valley R. R., 174 Pa. 171 (1896.) 4 Van Steuben v. Central R. R. of New Jersey, 178 Pa. 367 (1896.) |