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

Appeals from the judgment and from the order denying the defendant a new trial.

On July 15, 1893, the Sierra Ice Company was the owner of certain icehouses situated in Hevada county. Upon that day *436 three of its houses, which were insured with plaintiff for fifteen thousand dollars, were totally destroyed by fire. The ice company presented its claim of loss for forty-four thousand dollars. The plaintiff paid the full amount of insurance, and after payment, being subrogated to the ice company, made demand upon the Southern Pacific Company for reimbursement, contending that the fire had been negligently set by the Southern Pacific Company in operating one of its locomotive engines. The Southern Pacific Company denied all responsibility for the fire, and refused payment. Plaintiff requested the ice company to join with it in an action against the Southern Pacific Company for a recovery. The ice company refused to do so, and was made a defendant in this action. During the trial of the action, however, the ice company, by stipulation of the parties, was dismissed from the case. The verdict and judgment were for the plaintiff.

The three icehouses which were destroyed were situated…

I dissent for several reasons; but, waiving other points, it is sufficient to say here that in my opinion the court below in giving instruction No. 3, asked by respondent, committed a material and prejudicial error for which the judgment should be reversed. The instruction is very long, and is, I think, erroneous as a whole, because it deals mainly with questions of fact and is argumentative. The specific part of it which, in my opinion, is clearly erroneous is as follows: “Proof to the effect that immediately before the breaking out of the fire, an engine-of the defendant, burning coal for the purpose of generating steam, was in operation immediately by, and in close proximity to, the place where the fire broke out, and that such engine had, on previous occasions, set fire by sparks escaping therefrom, and that said engine was so operated in re *443 lation to said property that a spark or sparks escaping therefrom could have set the fire, and the condition of the property and the surrounding circumstances being such as to warrant a belief on your part that the fire was more likely brought about by a spark or sparks from said engine than from any other cause, would be such…