Alabama G.S.R. Co. v. Taylor

• Decision Date: 06 February 1901
• Citation: 129 Ala. 238,29 So. 673
• Parties: ALABAMA G. S. R. CO. v. TAYLOR.
• Court: Alabama Supreme Court

29 So. 673

129 Ala. 238

ALABAMA G. S. R. CO. v. TAYLOR.

Supreme Court of Alabama

February 6, 1901

Appeal from circuit court, Greene county; John C. Anderson, Judge.

Action by Mary E. Taylor against the Alabama Great Southern Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

The complaint contained two counts, which were in words and figures as follows: (1) "The plaintiff claims of the defendant seventy-five dollars damages, which damages were caused by fire from the engine operated by defendant, whereby said sum of seventy-five dollars damages were caused by said defendant to said plaintiff by reason of said fire, whereby said plaintiff's corncrib or building was wholly destroyed,-all caused by the negligence of defendant,-and by reason of said fire said plaintiff was damaged to the amount of said sum of seventy-five dollars; wherefore plaintiff brings this action." (2) "The plaintiff claims of the defendant the further sum of seventy-five dollars damages for that whereas, on, to wit, the 12th day of May, 1899, the defendant was engaged in running or operating a steam engine or locomotive on its track in Greene county, Alabama; and the plaintiff owned a corncrib or building at or near Hairston in said Greene county, Alabama, which corncrib or building was totally destroyed by fire, which fire was communicated to plaintiff's said building or corncrib from the engine or locomotive operated by the defendant, whereby said sum of seventy-five dollars damages was caused by said defendant to said plaintiff by reason of said fire,-all caused by the negligence or carelessness of the defendant in operating or running said engine or locomotive; wherefore plaintiff brings this suit." To each of these counts the defendant demurred upon the ground that each count was indefinite and uncertain, in that it fails to allege wherein the defendant was negligent or careless in the operation or running of its engine. This demurrer was overruled. Trial was had upon issue joined upon the plea of the general issue. It was shown by the evidence that the corncrib which was burned, and which belonged to the plaintiff, was 56 yards and 6 inches from the defendant's railroad track; that the corncrib was discovered to be on fire a few minutes after the passenger train on the defendant's road passed. The evidence for the plaintiff tended to show that at the time the train of the defendant passed along the road near the corncrib the wind was blowing in the direction from the road towards the corncrib; that within 5 or 10 minutes after the train had passed, a fire was discovered on top of the corncrib; that this was about 9 o'clock in the morning on May 5, 1899 that at that time there was no fire in any of the houses near the corncrib; that the nearest house in which there could have been a fire was a blacksmith shop, which was 220 yards away from the corncrib, but that there was no fire in the shop at this time; that it was very dry, and the corncrib was an old building, covered with shingles; that there was no fire anywhere about the corncrib, and when the fire was first discovered it was on the top of the crib. It was further shown that the station where the corncrib was located was called Hairston, which was a flag station, at which trains did not stop except when flagged; that upon the morning when the corncrib was burned the passenger train referred to was flagged at this station, and stopped. The place where the train stopped was over 200 yards from the corncrib in the direction in which the train was going. The defendant introduced as witnesses the engineer and fireman who were on the engine that was drawing the passenger train which passed the plaintiff's corncrib on the morning in question, and the master mechanic on the defendant's road, and the inspector of engines at the defendant's shops in Birmingham. All of these witnesses testified that the engine was equipped with the latest approved and improved spark arresters, devices, and appliances to prevent the escape of sparks from the said engine; that they had examined the engine in question the day the plaintiff's corncrib was burned, and they had found the engine in perfect condition in every respect; that it was better equipped, so far as proper devices and appliances for preventing the escape of sparks was concerned, than engines were generally upon well-regulated roads. These witnesses also testified that with such appliances they did not think a fire could be communicated to a building 56 yards from the defendant's track. Before entering upon the trial, plaintiff served notice upon the defendant to produce in court on the trial the written report of B. H. O'Brien, who was the engineer on said engine, as to whether or not the passenger train drawn by his engine stopped at Hairston on the morning the corncrib was burned. Upon the cross-examination of said O'Brien as a witness, and after he had testified that he had made such written report, and that it was then in the hands of defendant's counsel, the attorneys for plaintiff demanded that such written statement be given to them. Defendant objected to being required to furnish such statement, upon the ground that no sufficient demand had been made, and that the same was illegal, irrelevant, and immaterial evidence. The court overruled the objection required the written report to be furnished to plaintiff's counsel, which report was then read by plaintiff's counsel to the...