Birmingham Ry., Light & Power Co. v. Martin

• Decision Date: 15 November 1906
• Citation: 148 Ala. 8,42 So. 618
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. MARTIN.
• Court: Alabama Supreme Court

42 So. 618

148 Ala. 8

BIRMINGHAM RY., LIGHT & POWER CO. v. MARTIN.

Supreme Court of Alabama

November 15, 1906

Rehearing Denied Dec. 21, 1906.

Appeal from City Court, of Bessemer; B. C. Jones, Judge.

"To be officially reported."

Action by J. B. Martin, administrator, against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint in this cause contained two counts. The first count, after describing the kind and character of property destroyed and its location, averred negligence in the following words: "And the defendant negligently caused the destruction by fire of the plaintiff's said property to the great damage of plaintiff in the sum of $4,000 as afore-said. Wherefore plaintiff sues and claims damages." The second count, after describing the nature and kind of property, and its location with reference to the defendant's railroad track, avers that "the defendant negligently caused the destruction by fire of plaintiff's said property by causing, suffering, or permitting sparks and fire to be emitted from one of its said engines, and thereby set on fire a storehouse situated on the corner of Twelfth avenue, and Twenty-Fourth street, in block 520, which fire was communicated from said building to the said buildings and property of the plaintiff, by means of other houses standing between, in the course and spread of the fire; and plaintiff avers that his said property was so destroyed by reason of the negligence of the defendant, as aforesaid, which consisted in this: That the defendant negligently selected and maintained an engine which it was operating in a defective condition, so that said sparks and fire were thereby caused to be emitted from said engine; that the defendant negligently failed to provide and furnish said engine with a proper spark arrester or appliance to prevent the escape of sparks and fire, such as are used on well-regulated railroads, or allowed the spark arrester negligently to be and remain in a defective condition, so that the sparks and fire were thereby caused and permitted to escape from said engine as aforesaid, thereby proximately causing the communication of fire from said engine to, and the destruction of plaintiff's said property as aforesaid."

Defendant interposed demurrers to the said count that the allegation of negligence in said count is insufficient; that it is too vague, indefinite, and uncertain; that it is the allegation of a conclusion; that it is not pointed out wherein the defendant's negligence caused the destruction to plaintiff's property. These demurrers were filed to each count. The judgment was rendered on the 12th day of December 1902. On the 23d of January, 1903, an order was entered by the judge of the city court extending the time of signing said bill to include February 25, 1903. By various agreements of counsel, entered into before the time fixed by the next preceding order for signing the bill, the time for signing was extended to the 1st day of April, 1903, and the bill was signed within the time fixed by the last agreement.

The question propounded to Mrs. Smithson, was as follows: "I will ask you whether or not you saw any of the engines passing along that place on the defendant's dummy line prior to the time of the fire, about the time of the fire, or a short while prior to the time of the fire, throw out sparks that went as far from the track as your house." This was objected to as incompetent, irrelevant, and illegal. There was evidence pro and con as to the proper equipment of the engine, and as to whether they were operated negligently or properly, not necessary to be set out in detail.

The defendant requested the following charges, which were refused: "(4) The burden of proof is on the plaintiff in this case to reasonably satisfy the mind of each individual juror that the fire which destroyed the plaintiff's property was caused by sparks from an engine of defendant and unless each individual juror is so reasonably satisfied by a preponderance of the evidence, then the jury cannot render a verdict in favor of the plaintiff." "(15) The court charges the jury that the burden of proof is upon the plaintiff to establish by a preponderance of the evidence and to the reasonable satisfaction of the jury every material allegation of the complaint, or some count thereof." "(18) I charge you that the jury cannot render a verdict in favor of the plaintiff in this case, unless the conscience of each individual juror is reasonably satisfied that the fire which caused the destruction of plaintiff's property was set out by an engine of the defendant." "(28) I charge you that the mere fact that the fire originated from sparks emitted from an engine is not sufficient in this case to fasten a liability upon the railroad company." "(30) The mere fact that a fire occurred along the line of defendant's road does not raise a presumption that it was caused by or originated from defendant's engine."

There was judgment for plaintiff.

Tillman, Grub, Bradley & Morrow, for appellant.

Estes & Smith, for appellee.

WEAKLEY C.J.

The judge of the city court of Bessemer, by virtue of section 18 of the act establishing that court (Acts 1900-01, p. 1863), had authority in term time to extend the time for signing a bill of exceptions, and his order, made before the expiration of 60 days next following the trial of the issues of fact, was efficacious to accomplish the extension. Moss v. Mosley (Ala.) 41 So. 1012. The time was further and properly extended by successive agreements of counsel, and the bill was signed during the trial term before the expiration of the period fixed in the last agreement and within six months from the date of trial. The motion to strike the bill of exceptions must be overruled.

The two counts of the complaint are sufficient in their averments of negligence. L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 So. 438, 50 L. R. A. 620; Birmingham R., L. & P. Co. v. Hinton, 141 Ala. 606, 37 So. 635.

The question propounded to the witness Mrs. M. F. Smithson was not objectionable in that she was interrogated as to the throwing out of the sparks by the engine "a short while" prior to the time of the fire. If it be true that the expression "a short while" is somewhat...