Bottoms v. Seabd. Air Line Ry
| Decision Date | 13 September 1904 |
| Citation | 49 S.E. 348,136 N.C. 472 |
| Court | North Carolina Supreme Court |
| Parties | BOTTOMS et al. v. SEABOARD AIR LINE RY. |
RAILROADS—DUTY TO USE SPARK ARRESTERS— ERRONEOUS INSTRUCTION—PREJUDICIAL EFFECT.
1. It is not the duty of a railroad company to equip its engines with the "best approved" spark arresters, but merely with such approved appliances as are in general use.¶ 1. See Railroads, vol. 41, Cent. Dig. §§ 1669, 1670, 1710.
2. Error in charging that it was defendant's duty to equip its engines with the "best approved" spark arresters was not rendered harmless by uncontradicted evidence that the engine claimed to have set the fire was equipped with the best approved spark arrester; this fact not being expressly admitted, and there being evidence that a shower of large sparks was emitted.
Appeal from Superior Court, Northampton County; Cooke, Judge.
Action by J. D. Bottoms and others against the Seaboard Air Line Railway. Prom a judgment for plaintiffs, defendant appeals. Reversed.
T. W. Mason, Day & Bell, and Murray Allen, for appellant.
Peebles & Harris and Gay & Midyette, for appellees.
In this action for damages for destruction of the plaintiffs' store, alleged to have been set on fire by sparks from the defendant's engine, the court charged the jury that it was "the duty of railroad companies to equip their engines with the best approved devices and appliances for arresting sparks, * * *" and that failure to do so was negligence, making the defendant liable for damages if the jury should find that the plaintiffs' house was set on Are by sparks from the defendant's engine. The defendant excepted.
There is error. In Witsell v. Railroad, 120 N. C. 557, 27 S. B. 125, this court said that it was not negligence to fail to adopt improved appliances merely because they are "known" and "approved"; that railroads were not to be held to so strict a rule that they must keep a lookout for improvements and inventions and buy all such as were approved; and held the correct rule to be thus: "It is negligence not to adopt and use all approved appliances which are in general use." It added that to require the purchase of approved appliances before they had come into general use would be simply to hold that every railroad must have "the latest and best, " which would be an unreasonable burden. This ruling has been uniformly followed since. In Greenlee v. Railroad, 122 N. C. 979, 30 S. E. 115, 41 L. R. A. 399, 65 Am. St. Rep. 734, and Troxler v. Railroad, 124 N. C. 191, 32 S. E. 550, 44 L. R. A. 313, 70 Am. St. Rep. 580, the court cites...
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Wilson v. Bush
......937, 29 South. 913; Flinn v. Railroad Co., 142 N. Y. 11, 36 N. E. 1046; Bottoms v. Railroad Co., 136 N. C. 472, 49 S. E. 348. This rule is in accord with the the general ......
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Wilson v. Bush
......Railway Co., 78 Miss. 937, 29 So. 913; Flinn v. Railroad Co., 142 N.Y. 11, 36 N.E. 1046; Bottoms v. Railroad Co., 136 N.C. 472, 49 S.E. 348. This rule is in. accord with the the general ......
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Stewart v. Vandeventer Carpet Co
...359, 35 S. E. 611; Dorsett v. Mfg. Co., 131 N. C. 262, 42 S. E. 612; Marks v. Cotton Mills, 135 N. C. 290, 47 S. E. 432; Bottoms v. Railroad, 136 N. C. 472, 49 S. E. 348. But while this Is so, there must be evidence upon which the jury can find that the particular appliance which it is clai......
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Stewart v. Raleigh & Augusta Air Line R. Co
...... appliance which is in general use and necessary for safety." This rule has been reiterated, and adhered to in every case since, including Bottoms v. Railroad, 136 N. C. 473, 49 S. E. 348. The writer, however, is free to say now, speaking for himself, that it is culpable negligence when ......