Abernathy v. Emporia Mfg. Co

• Decision Date: 21 March 1918
• Citation: 95 S.E. 418
• Parties: ABERNATHY. v. EMPORIA MFG. CO.
• Court: Virginia Supreme Court

95 S.E. 418

ABERNATHY.

v.EMPORIA MFG. CO.

Supreme Court of Appeals of Virginia.

March 21, 1918.

Error to Circuit Court, Lunenburg County.

Action by C. P. Abernathy against the Emporia Manufacturing Company. Judgment for defendant, and plaintiff brings error. Reversed.

Buford & Peterson, of Lawrenceville, for plaintiff in error.

Irby Turnbull, of Boydton. and Hiram Wall, of South Hill, for defendant in error.

BURKS, J. This is an action brought by the plaintiff in error to recover the value of a large quantity of lumber destroyed by fire, which was alleged to have been set out by the engine of defendant in error. The defendant in error operates a lumber manufacturing plant. It owns a considerable amount of timber in the county of Lunenburg, and in connection with its enterprise is engaged in hauling logs from the woods to its sawmill. Its transportation system consists of a logging railroad, over which it operates regular trains from its principal camp in Lunenburg to a junction point called South Hill, on the Southern Railway. The logging road is a railroad of an inferior character, and over it there are used regularly two engines to pull its trains.

On April 27, 1915, a fire broke out on or near its railway track, which was communicated to the plaintiff's lumber and destroyed it. The defendant's contention is that the fire was not set out by its engines. There was a verdict and judgment for the defendant, to which judgment this writ of error was awarded.

The first error assigned is that the verdict was contrary to the law and the evidence. The evidence and not the facts being certified, the case stands in this court as on a demurrer to the evidence by the plaintiff in error. Code, § 3454.

The theory of the defendant was and is that the fire was not set out by its engines, and, viewed as on a demurrer to the evidence by the plaintiff in error, the evidence to support the verdict is so abundant that it is deemed unnecessary to recite it here. Some of it is hereinafter given in the discussion of the fourth assignment of error.

The second assignment of error is to the action of the trial court in giving the following instruction:

"The court instructs the jury that the burden is on the plaintiff to show by a preponderance of evidence how and why the fire occurred, and to warrant a verdict for the plaintiff the final burden rests upon him to prove by a preponderance of evidence that the origin of said fire was due to the negligence of the defendant."

The chief objection urged to this instruction is to the use of the expression "how and why, " and it is said that the repeated reiteration of the duty of the plaintiff was calculated to convey to the jury the idea that the plaintiff was required to prove his case beyond a reasonable doubt. We cannot concur in this conclusion. It cannot be doubted that the burden was upon the plaintiff to offer evidence to prove the origin of the fire, and also to show by a preponderance of the evidence that the defendant was responsible therefor. This, the first part of the instruction assumed to do. The instruction then, as if by way of explanation of what had been stated, proceeds:

"And to warrant a verdict for the plaintiff, the final burden rests upon him to prove by a preponderance of evidence that the origin of said fire was due to the negligence of the defendant."

Certainly no objection can be found to this part of the instruction, and, when the instruction is read as a whole, it did no more than tell the jury that the burden was upon the plaintiff, by a preponderance of the evi-dence, to establish the fact that the fire in question was set out by the defendant, or to trace the origin of the fire to the defendant's agency. The object of the instruction was to tell the jury that they could not guess at the origin of the fire, but that this fact must be established by evidence, and that, in order to fix a liability on the defendant by finding a verdict in his favor against the defendant, the burden was upon the plaintiff to show, by a preponderance of the evidence, "that the origin of said fire was due to the negligence of the defendant." The instruction might have been framed in language more apt to express this idea, but, under the facts of this case, we do not see how the jury could have been misled by it. The law on this subject has been frequently stated by this court. C. & O. Ry. Co. v. Sparrow, 98 Va. 63, 37 S. E. 302; N. & W. Ry. Co. v. Cromer, 99 Va. 763, 40 S. E. 54; Southern Ry. Co. v. Hall, 102 Va. 135, 45 S. E. 867; C. & O. Ry. Co. v. Heath, 103 Va. 64, 48 S. E. 508; A. C. L. R. Co. v. Watkins, 104 Va. 154, 51 S. E. 172.

We base our conclusion, as to this instruction, on the language of the instruction, read in connection with the evidence in this case, and not on the fact that the same language has been used in opinions of this court in another case, or cases. Language used by an appellate court in deciding a case may be entirely proper and correctly state the law, and yet be wholly unsuitable as an instruction to the jury, even where the facts of the two cases are similar. The appellate judge frequently uses argumentative language, and also freely expresses his opinion upon the facts of the cases, neither of which would be appropriate in an instruction to the jury. So that the mere fact that certain language has been used by the judge of the appellate court in rendering an opinion is not of itself sufficient to justify the use of the same language by a trial court in its instruction to the jury. Atlanta & W. P. R. Co. v. Hudson, 123 Ga. 108, 51 S. E. 29; Par-rail v. Farnam (Md.) 5 Atl. 622. [4] The third error assigned is to the action of the trial court in giving to the jury the following instruction:

"The court instructs the jury that even if they believe from the evidence that the fire in question originated on the right of way of the defendant by the emission of sparks or coals of fire, yet if they believe from the evidence that said right of way was reasonably clear of combustible materials liable to ignition, then the defendant is not liable."

The plaintiff in his declaration presented two aspects of the case, one that the fire started on the right of way, which was foul, and the other that on account of the negligent construction and operation of its trains sparks were cast beyond its right of way and set out the fire in question. The instruction was addressed to the first aspect of the plaintiff's case as stated in the declaration, and although it concludes with the statement that if they believe the hypothesis stated in the instruction the defendant is not liable, these words were equivalent to directing the jury to find for the defendant. If the jury took this view of the case, and the instruction was otherwise correct there was no error in directing a finding for the defendant. The fire could not have originated both on and off the right of way. The declaration, in separate counts, propounded both theories, and the plaintiff has no ground of complaint if the jury adopted one of the theories and rejected the other. The instruction tells the jury, if they adopt the theory that the fire originated on the defendant's right of way, still they must find for the defendant if they believe the right of way was reasonably free from combustible material. This was not taking a partial view of the case, but defined the rights of the parties in the event the jury should adopt that theory of the case. But even in this aspect of the case, the instruction to the jury was too limited in its scope and effect The right of way of the defendant may have been reasonably clear of combustible material liable to ignition, and yet if the defendant, by reason of defective locomotives, or by the improper operation of the locomotives, scattered fire along the right of way, which was communicated to the property of the plaintiff, the plaintiff would be entitled to recover, although the right of way was reasonably clear of combustible material. The defendant could not have been allowed, simply by keeping its right of way reasonably clear of combustible material, to scatter fire along its right of way which would cause damage to others. The Instruction, in this respect, should have gone further and said that if the right of way was reasonably clear of combustible material, and the defendant's locomotives were equipped with the best appliances in known practical use, that they were in good order and carefully operated, then and in that event they should find for the defendant. The law was correctly stated in another instruction given at the instance of the defendant, hereinafter quoted in the discussion of the eighth assignment of error, but we are unable to say that the jury could not have been misled by the material omission aforesaid from this instruction, which purported to state the law applicable where the fire started on defendant's right of way, and when this is the case the defect in one instruction is not cured by a correct statement of the law in another. The instruction, as given, was erroneous. American L. Co. v. Whitlock, 109 Va. 238, 63 S. E. 991.

The fourth assignment of error is to the action of the trial court in giving the following instruction:

"The jury are instructed that not only is the burden of showing negligence by a preponderance of the evidence upon the plaintiff, but if the fire may have been started from one of two causes, for one of which the defendant is re-sponsible, but not for the other, the plaintiff cannot recover; neither can he recover if it was just as probable that the fire was caused by the one as by the other; that is to say, if the jury believe from the evidence that the said fire might have been set out by the boys who were smoking cigarettes, who had passed along where the fire originated, if they believe from the evidence that the boys said to have passed did so pass, and if they further believe from the evidence that the boys were...