Norfolk &. W. Ry. Co v. Perrow

• Decision Date: 12 March 1903
• Court: Virginia Supreme Court
• Parties: NORFOLK &. W. RY. CO. v. PERROW.

43 S.E. 614

101 Va. 346

NORFOLK &. W. RY. CO.

v.PERROW.

Supreme Court of Appeals of Virginia.

March 12, 1903.

RAILROADS—FIRE SET BY LOCOMOTIVE—NEGLIGENCE—DEFENSES—ASSIGNMENT OF ERRORS—EVIDENCE.

1. Where the negligence of defendant has been established, the fact that plaintiff has also been guilty of negligence is no defense, unless such negligence contributed to the injury.

2. The fact that the wall of a house is wrongfully on the right of way of a railroad is no defense in an action for the willful destruction of the house by the company by fire.

3. Under Code 1887, § 3464, requiring that a petition for a writ of error shall assign errors, a general statement that the refusal of the court to give instructions is relied on as error is insufficient.

4. Where the evidence in an action for fire set by a locomotive to plaintiff's property shows that defendant company at the time of the fire was operating a defective engine, or else was negligently operating engines in approved condition, it would he liable for resulting fires in either case.

5. Evidence in an action for fire set by locomotive held to clearly raise an issue of fact as to the condition of the engines and the character of their operation.

Error to Circuit Court, Campbell County.

Action by William R. Perrow against the Norfolk & Western Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

F. S. Kirkpatrick, for plaintiff in error.

Caskie & Coleman and Lee & Howard, for defendant in error.

HARRISON, J. This suit was brought in the circuit court of Campbell county by William R. Perrow to recover of the Norfolk & Western Railway Company damages for the destruction of his residence and its contents, alleged to have been caused by fire thrown from an engine of the defendant railway company. A verdict was returned in favor of the plaintiff for $3,750, which the court refused to set aside. This action of the circuit court we are asked to review and reverse.

The only error specifically mentioned in the petition is the refusal of the lower court to give instructions "A" and "E" asked for by the defendant. By instruction "A" the court was asked to tell the jury that if they believed from the evidence that the plaintiff, through either accident or design, caused to be partially erected upon the right of way of the Norfolk & Western Railway Company a frame building which had a window in it on the railway side, that the wall of the house which contained said window rested in part upon the defendant's right of way, and that the sash was left open, with a curtain of inflammable material therein, the jury must find a verdict for the defendant company, although they may believe from the evidence that the fire was caused by an engine of the defendant company, and that such engine was at the time in a defective condition.

The evidence is conflicting as to whether or not the wall of the house in question was, in part, upon the right of way of the defendant company, but if the jury had believed that it was, by design or mistake, placed in part over the line between the plaintiff and defendant, and that a window was open on the side next to the railway company, with a curtain therein of inflammable material, and it were a sound proposition that these acts constituted negligence, the instruction would still be defective as a statement of law, for it assumes that such negligence contributed to the injury sustained by the plaintiff. The jury might have believed every fact mentioned in the instruction, and, unless those acts contributed to the injury, the plaintiff would not have been deprived of the right to recover. The evidence was conflicting as to which side of the house was first ignited, with a strong preponderance in favor of the view that it began on the side of the house farthest from the right of way of the defendant, which was conceded to be upon the land of the plaintiff.

Instruction "E" is obnoxious to the same objection that has been suggested to instruction "A." By it the court was asked to tell the jury that if they believed from the evidence that the defendant, through accident or design, erected the house in question with the northern side placed entirely, or almost entirely, on the right of way of the defendant company, with a window in said northern side left open, with an inflammable curtain therein, and that if the jury should be of opinion that such an act on the part of the plaintiff constituted negligence, then they must find for the defendant company, without any regard to the question whether or not such negligence had anything to do with causing the injury complained of. These instructions were clearly erroneous and properly refused. The effect would have been to require the jury to disregard all of the evidence of the plaintiff as to the origin of the fire and the cause of the damage sustained, if they believed that the northern wall of the plaintiff's house was in whole or In part up-on the right of way of the defendant company, with an open window therein, over which hung a curtain of inflammable material. If the wall of the plaintiff's house had been...