Atl. Coast Line R. Co v. Watkins

• Decision Date: 15 June 1905
• Citation: 51 S.E. 172,104 Va. 154
• Court: Virginia Supreme Court
• Parties: ATLANTIC COAST LINE R. CO. v. WATKINS.

104 Va. 154

51 S.E. 172

ATLANTIC COAST LINE R. CO.

v.WATKINS.

Supreme Court of Appeals of Virginia.

June 15, 1905.

1. Railroads—Fires — Combustible Material on Right of Way.

A railroad company owes the duty of keeping its right of way clear of combustible materials liable to ignition by sparks from engines.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, § 1673.]

2. Same—Due Care.

Where a railroad company equips its locomotives with the best known appliances to prevent the escape of sparks, keeps the locomotives in good repair, and keeps its right of way clear of combustible materials, it is, as a general rule, not liable for fires caused by sparks from locomotives.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1657-1670.]

3. Appeal—Review—Questions of Fact.

Though an appellate court will not reverse the jury's finding on an issue of fact unless there has been a plain deviation from the evidence, nevertheless it will not hesitate to do so if satisfied that the evidence is plainly insufficient to support the findings.

4. Railroads—Fires—Evidence.

That a fire started from a spark from a locomotive does not alone justify an inference that the fire originated on the railroad right of way.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1709, 1710.]

5. Same—Sufficiency of Evidence.

In an action against a railroad company for damages alleged to have been caused by a fire originating on the right of way, evidence held insufficient to justify submission to the jury of the question whether the fire did so originate.

Error to Circuit Court, Chesterfield County.

Action by W. O. Watkins against the Atlantic Coast Line Railroad Company. There was judgment for plaintiff, and defendant brings error. Reversed.

Geo. B. Elliott, for plaintiff in error.

J. M. Gregory and C. S. Sands, for defendant in error.

WHITTLE, J. This writ of error brings up for review a judgment in behalf of the defendant in error against the plaintiff in error in an action to recover damages for injury to the land and timber of the former, alleged to have been occasioned by fire which originated on the right of way of the plaintiff in error.

While it is conceded that the fire was caused by sparks emitted by one of the defendant's locomotives, it appears that the engine was equipped with the best mechanical appliance in known and practical use for preventing the escape of sparks. It also appears that the engine was in good repair, and in charge of a competent and experienced locomotive engineer. Therefore the defendant was not neglectful of any of its obligations to the public in those particulars. Tyler v. Ricamore, 87 Va. 400, 12 S. E. 799; Patteson v. C. & O. Ry. Co., 94 Va. 16, 26 S. E. 393; N. & W. Ry. Co. v. Perrow, 101 Va. 345, 43 S. E. 614.

The remaining duty of a railroad company in that connection is to keep its right of way clear of combustible materials liable to ignition by sparks or coals of fire discharged from passing engines and to communicate fire to the property of others. N. Y. P. & N. Ry. Co. v. Thomas, 92 Va. 606, 24 S. E. 264; Tutwiler v. C. & O. Ry. Co., 95 Va. 443, 28 S. E. 597. As a general rule, subject, of course, to exceptions in particular cases, where these responsibilities have been complied with, a railroad company fulfills its duty, and is not liable in damages for the escape of fire. White v. N. Y. P. & N. Ry. Co., 99 Va. 357, 38 S. E. 180; C. & O. Ry. Co. v. Heath (Va.) 48 S. E. 508.

The specific ground of negligence relied on to sustain the verdict and judgment under review is the allegation that the fire originated in dry swamp grass on the defendant's right of way, and was communicated thence to the woodland of the plaintiff; and that is the sole question presented by the record for decision.

In approaching the consideration of that question, the court is mindful of the rule that the case is before it as upon a demurrer to the evidence, and that the inquiry touching the negligent starting or communication of fire to the plaintiff's property involves an issue of fact for the determination of the jury, and that an appellate court may not reverse a judgment founded thereon unless there has been a plain deviation from the evidence. But the converse of the proposition is equally true—that the court will not hesitate to set aside the verdict if it is satisfied that the evidence is plainly insufficient to support it. Kimball & Fink v. Friend, 95 Va. 125, 27 S. E. 901; Reusens v. Lawson, 96 Va. 285, 31 S. E. 528; Marshall's Adm'r v. Valley Ry. Co., 99 Va. 978, 34 S. E. 455; Morien v. N., etc., Terminal Co. (Va.) 46 S. E. 907; Seaboard, etc., Ry. Co. v. Hickey, 102 Va. 394, 46 S. E. 392; Moore Lime Co. v. Johnston's Adm'r (Va.) 48 S. E. 557.

The burden of proof rests upon the plaintiff to show that the fire began on the right of way, for, unless that fact be established, the alleged negligence of the railroad company in suffering combustible matter to accumulate on its right of way was not the efficient and proximate cause of the accident.

Notwithstanding the evidence justifies the primary...