Alabama Great Southern R. Co. v. Clark

• Decision Date: 30 June 1905
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. CLARK.
• Court: Alabama Supreme Court

39 So. 816

145 Ala. 459

ALABAMA GREAT SOUTHERN R. CO. v. CLARK.

Supreme Court of Alabama

June 30, 1905

Appeal from Circuit Court, Greene County; S. H. Sprott, Judge.

"To be officially reported."

Action by J. P. Clark against the Alabama Great Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed on rehearing.

Rehearing denied January 9, 1906.

Statement A, referred to in the opinion, was a series of questions and answers which were propounded to Henry Pippin by Mr Smith and answered by said Pippin. It was shown by the testimony of Pippin and Smith that this conversation took place between them previous to the trial, was taken down in shorthand and read over to Henry Pippin, but not signed by him. The same related to the conditions surrounding the depot and warehouse, the operation of trains, and his knowledge of what occurred just previous to the fire and during the continuance of the fire. Plaintiff's counsel on cross-examination asked witness Hinds this question concerning the movement of the cars and engines in the yards: "You were hurrying the work up, were you not?" Defendant objected to this question. The court overruled the objection, and witness answered: "We were doing the switching in the usual way. We hurried every day. We do it as quickly as we can in order to make the time." The defendant moved to exclude this testimony, and the court overruled the motion. Plaintiff's counsel asked witness Gray on direct examination: "What was the first thing that you observed that the engine did there?" Witness answered: "It was on the main line, and was pulling a car right where the seed house was. This car was about half way of the seed house, and the engine was pushing it north up the track." There was objection to the question and answer which was overruled.

The following charges, requested by defendant, were refused "(4) The court charges the jury that the evidence is uncontroverted that the engine which it is alleged caused this fire was in good condition at the time of the injury complained of. * * * (23) If the jury should believe from the evidence that the damage complained of in the complainant's complaint was caused by sparks from the defendant's engine run and operated on its road, the plaintiff is not entitled to recover if the jury should further believe from the evidence that the defendant's engine was carefully operated by a competent person near and around the warehouse on the day of the fire. (24) The court charges the jury that, unless they believe from the evidence that defendant's engine was improperly handled at the time of the fire, they must find for the defendant."

A. G. &amp E. D. Smith and L. P. Pounders, for appellant.

Harwood & McKinley and Vandergraff & Sprott, for appellee.

SIMPSON J.

This was an action for damages for the burning of 115 bales of cotton of the plaintiff (appellee) in the warehouse of the Planters' Warehouse & Commission Company, at Eutaw, Ala.; and it is claimed that said burning was caused by the negligence of defendant (appellant), from whose engine it is claimed sparks were emitted, setting fire to cotton on the platform adjoining said warehouse, which fire extended to the warehouse, destroying plaintiff's cotton. Defendant claimed that the warehouse company was guilty of contributory negligence in permitting cotton to remain on the open platform, where it was liable to be set on fire by sparks necessarily escaping from defendant's engines in the necessary prosecution of its business.

The first point raised by the argument is whether or not the plaintiff can be held liable for the consequences of the contributory negligence of the warehouse company, to which plaintiff had committed the care of its cotton. The doctrine of contributory negligence is based upon the principle that the plaintiff, having been guilty of negligence which proximately contributed to...