Alabama G.S.R. Co. v. Johnston

• Decision Date: 24 January 1901
• Parties: ALABAMA G. S. R. CO. v. JOHNSTON.
• Court: Alabama Supreme Court

29 So. 771

128 Ala. 283

ALABAMA G. S. R. CO. v. JOHNSTON.

Supreme Court of Alabama

January 24, 1901

Appeal from city court of Birmingham; William W. Wilkerson, Judge.

Action by Mary M. Johnston against the Alabama Great Southern Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

The complaint contained but one count, which was in words and figures as follows: "The plaintiff claims of the defendant seven thousand five hundred dollars as damages for that heretofore, to wit, on the 12th day of July, 1898 defendant was running and operating a railroad through Tuscaloosa county, Alabama, and was running and operating a locomotive thereon; that plaintiff owned certain houses fences, fencing, trees, orchards, shrubbery, and plants upon a certain lot or parcel of land near to said railroad, which lot of land is described as follows, viz. [here follows description of land]; that defendant negligently caused or allowed said houses, fences, fencing, trees, orchards shrubbery, and plants to be greatly damaged or destroyed by means of a fire communicated from or by means of said locomotive, all to plaintiff's damage $7,500. Wherefore she sues." To this count of the complaint the defendant demurred upon the following grounds: "(1) For that said complaint states no cause of action against this defendant. (2) For that said complaint is indefinite and uncertain, in this: that it does not inform the defendant in what respect the defendant was negligent, whereby the property named in the complaint was damaged or destroyed. (3) For that no negligence of the defendant is set out in the said complaint but the negligence complained of is stated merely as a conclusion of the pleader." This demurrer was overruled and the defendant then pleaded the general issue, and by two special pleas set up the contributory negligence of the plaintiff, in that there was located on the plaintiff's land, near the railroad track, a large pile of sawdust, which had been deposited on said land by persons who had theretofore operated a sawmill; that said pile of sawdust was allowed to remain there by the plaintiff, and it had caught fire from different causes at various times, and that notwithstanding this fact the plaintiff allowed the pile of sawdust to remain there, and that at the time of the fire which destroyed plaintiff's houses the sawdust pile was ignited, and the fire was communicated to the plaintiff's property from said sawdust pile. The material facts of the case relating to the property of the plaintiff being burned and the way in which the fire was started, are sufficiently stated in the opinion. On the examination of the plaintiff as a witness, she was asked whether or not she was the owner of the real estate which is described in the complaint, and upon which the houses that were burned were located. Thereupon the defendant's counsel asked the witness whether she had a deed to the real estate, and, upon her answering that she did have a deed to the property, counsel objected to the question upon the ground that the deed was the best evidence, and parol testimony could not be introduced to prove title to land when a deed was in existence. The court sustained this objection. Thereupon the plaintiff's counsel asked the witness: "How long have you been in possession of the property, claiming to own it?" The defendant objected to this question upon the same ground that was interposed to the other question, and, upon the plaintiff's counsel stating that he wished to prove title by adverse possession for more than 10 years, the court held that the question called for competent testimony, and overruled the defendant's objection. The witness testified that she had been in possession of the property 14 years, claiming it as her own, and that such possession was open and notorious, and that she had paid taxes on it the whole time. The defendant moved to exclude this testimony upon the same ground of the objection interposed to the question which evoked the answer. The court overruled the motion, and the defendant duly excepted. The plaintiff introduced evidence showing that her houses, shrubbery, and fruit trees were destroyed by the fire. Upon the examination of one Mrs. Emma C. Jones as a witness for the defendant, and after she had testified to two trains having passed by the plaintiff's houses from one hour to one hour and a half before the fire occurred, she was asked to "tell the jury whether or not other trains on the Alabama Great Southern Railroad going the way that one was going on that day at that time habitually threw sparks." The defendant objected to this question upon the ground that it called for illegal, immaterial, and irrelevant evidence. The court overruled the objection, and the defendant duly excepted. Upon the witness answering "that the Alabama Great Southern engines going up that grade habitually threw out a large amount of sparks about that time," the defendant moved to exclude this testimony upon the ground that it was irrelevant, illegal, and incompetent. The court overruled the motion, and the defendant duly excepted. Upon the cross-examination of some of the witnesses for the defendant, the plaintiff asked them the following question: "Who paid your fare?" And, upon the witnesses answering that the railroad sent a ticket, the plaintiff then asked the witness whether the railroad company sent them a pass? To each of these questions the defendant objected on the ground that it called for irrelevant and incompetent evidence, and moved to exclude the answers of each of the witnesses. The court overruled the objections and motions, and to each of these rulings the defendant separately excepted. During the examination of some of the witnesses the plaintiff sought to prove what it would cost to build new houses similar to the ones that were destroyed by fire. To each of such questions, and the evidence introduced showing what it would cost to construct new houses, the defendant objected because it was not a criterion by which the jury was to arrive at their verdict. The court overruled each of the objections, and the defendant duly excepted. In the court's oral charge to the jury, he instructed them, among other things, as follows: "Whenever it is shown in any particular case that a house is destroyed by fire from a locomotive, the presumption at once arises, in the absence of evidence to the contrary, that the engineer, or some agent of the company having control of the engine, was guilty of negligence in letting those sparks be thrown out. If the company was so guilty of negligence, it is responsible for such damages as resulted through its negligence; it is responsible for the loss caused by the fire. That is true, gentlemen of the jury, whether or not the fire was caused by the sparks alighting upon the houses which were burned, or whether the fire was caused by sparks alighting from the pile of sawdust, which in burning was thrown by a wind against the houses that were consumed. That is to say, if the railroad company was guilty of negligence, it is immaterial whether the sparks were thrown directly upon the top of the houses which were burned, or thrown upon a pile of sawdust, causing the sawdust to be set on fire, and then the burning sawdust was blown upon the houses. You see, in either event, the result would be the same. The houses would be burned up by the sparks falling on them, and in the other by the sparks falling on the sawdust pile and then communicated to the house; and the blowing of a wind - Unless it was a wind of a nature and character so unusual as that it might not be anticipated by anybody that any such wind would occur, the blowing of a wind would not be such an intervening cause as would relieve the company of responsibility. The reason of that is that winds are accustomed to blow with greater or less severity everywhere. If a wind is high, sparks or burning brands may be carried from one place to another, and if the wind is low they may not be; but the carrying of a burning brand by a wind from one place to another is not such an...