Alabama & Vicksburg Railway Company v. Barrett

• Decision Date: 29 October 1900
• Citation: 28 So. 820,78 Miss. 432
• Parties: ALABAMA & VICKSBURG RAILWAY COMPANY v. DORSEY BARRETT
• Court: Mississippi Supreme Court

28 So. 820

78 Miss. 432

ALABAMA & VICKSBURG RAILWAY COMPANY v. DORSEY BARRETT

Supreme Court of Mississippi

October 29, 1900

October 1900

FROM the circuit court, first district, of Hinds county HON ROBERT POWELL, Judge.

Mrs Barrett, the appellee, was the plaintiff and the railway company, appellant, was defendant in the court below.

From a judgment in plaintiff's favor the defendant appealed to the supreme court. The facts are sufficiently indicated by the briefs of counsel and the opinion of the court.

Affirmed.

Mc Willie & Thompson, for appellant.

It appears from the declaration that the lands, the burning over of which is complained of, do not adjoin the railway track or its right of way, but is separated from the right of way by the lands of another; and the evidence shows that they are separated from the right of way by the lands of two other persons and is considerably distant from it; therefore we insist that the plaintiff has no cause of action against the railway company; the damages are too remote. It further appeared that the fire started off the defendant's right of way, but near its edge, that it started, or rather was discovered before it had burned over any considerable area soon after the passage of one of defendant's trains; in fact, there was evidence that two fires were discovered after the passage of the train, and the court below assumed that this was sufficient to make out a prima facie case against the defendant. We claim that the evidence did not make out a prima facie case for the plaintiff.

However, to meet the assumed prima facie case, the defendant offered evidence which we think showed conclusively that the defendant was not guilty of negligence in the premises. It was shown that the engine was properly equipped with the best and most approved spark arresters, that it was properly run and manned in every respect by a competent engineer and fireman, and that the company's right of way was free from combustible material, consequently, if a prima facie case were made out against it, the defendant met that case and exculpated itself from all blame.

The Court of Errors and Appeals of New York (the highest court of that state) recently decided that a railroad company is not liable to the owner of lands burned over by a fire which it negligently originated, if to reach the lands in question the fire had to burn over the premises of another proprietor. Hoffman v. King, 160 N.Y. 618, s.c. 73 Am. St. Rept., 715, citing many cases in support of the doctrine that under such circumstances the damages are too remote. We trust the court will read the opinion of Haight, J., in that case; we adopt it as our brief. The courts of Pennsylvania decide the same way. Whatever may be said of decisions adverse to us on the proposition, we submit that they ought not to be followed, and that the New York court announces the correct rule. But, should the above contention be resolved against us, the evidence in the case at bar fell short of making out a prima facie case for the plaintiff. That even if two fires were discovered near the railway track shortly after the passage of an engine, does not connect the railway company therewith. In the court below the Tribette case ( Tribette v. Illinois, etc., R. R. Co., 71 Miss. 212), was counted upon. That case went to the extreme limit, and it would not, we think, have been decided as it was, had not a witness sworn that he saw live sparks escape from the engine and ignite the grass near the right of way, thus affirmatively connecting the fire with the engine. Had the witness in that case simply discovered a fire, or two fires, shortly after the passage of the engine, it would have been like the case at bar; but there is a broad distinction between seeing live sparks fall from an engine and at once ignite the grass, and discovering fires shortly after the passage.

Even resolving both of the above contentions against us, the uncontradicted evidence of appellant that it was not negligent, entitled it to a verdict and judgment in its favor; the peremptory instruction in its favor ought to have been given, and the motion for a new trial should have been sustained.

Williamson, Wells & Croom, for appellee.

Section 1808, code of 1892, applies in cases of damages by fire to property communicated by sparks from locomotives, and proof of injury to plaintiff's property by fire produced by sparks from defendant's locomotive puts the burden on defendant company to relieve itself of liability for negligenceu Louisville, etc., Ry. Co. v. Natchez, etc., R. R. Co., 67 Miss. 399.

It certainly is not necessary to show by an eyewitness that he saw the sparks come out of the smokestack, fall on the grass and originate the fire. If the circumstances proved convince the jury that the fire originated from a spark from a locomotive of defendant falling on the grass, they should so find, and the jury surely are to determine how the fire originated from a consideration...