Brister v. Illinois Cent. R. Co.

Decision Date14 March 1904
Citation84 Miss. 33,36 So. 142
CourtMississippi Supreme Court
PartiesBENJAMIN E. BRISTER ET AL., USE, ETC., v. ILLINOIS CENTRAL RAILROAD COMPANY

FROM the circuit court of Lincoln county. HON. ROBERT POWELL Judge.

Brister and others, appellants, doing business under the name Brister & Co., who sued for the use of several fire insurance companies, were the plaintiffs in the court below; the railroad company, appellee, was defendant there. From a judgment in defendant's favor the plaintiffs appealed to the supreme court.

Brister and others, plaintiffs, owned a large saw and planing mill situated on the west side of the tracks of the Illinois Central Railroad, at Bogue Chitto. The mill was about fifty feet from the main line, and there were a spur track and some switch tracks next to the mill. On November 5, 1900, this plant was destroyed by fire. Brister & Co. had several fire policies in different insurance companies, aggregating $ 13,000. The insurance companies paid Brister & Co. the amount of their several policies, and took an assignment of plaintiffs' claim against' the railroad company for damages. These several insurance companies were the uses in this suit against the Illinois Central Railroad Company to recover the amount of the damage by fire to the mill plant it being charged that the fire was caused by the negligence of the employes of said railroad company. The evidence for plaintiff was that the railroad company's section foreman on November 5, 1900, had a number of laborers at work clearing off the tracks and right of way in front of the mill, and that some timbers and trash were piled up and set on fire by these laborers; that there were three fires started near the mill early in the morning, which burned all day. One was started about twenty feet from the corner of the mill where the fire started which burned the mill. It was shown that the fires were burning, and the wind was blowing over the fires towards the mill about eight o'clock at night, and there were no lights about the mill, and no other fire except those on the railroad. The fire occurred between ten and eleven o'clock that night. It was also shown that it was a very dry time, and that the contents of the mill were very inflammable. The fires were examined by an employe of defendant about six o'clock that evening, and they had burned down, and there was, in the opinion of this employe no danger from them unless there was wind, and the section foreman examined the fires at six o'clock, and in his opinion there was no danger from them at that hour. Brister &amp Co. had a night watchman, who was on duty at the time of the fire. No one knew how the fire started. The evidence for the defendant contradicted some of the material parts of the plaintiffs' testimony. The opinion of the court contains a further statement of the facts.

Judgment reversed and cause remanded.

Green & Green, for appellants.

Conceding for the present that contributory negligence is properly predicable of the facts in this case; that the same is properly pleaded, and is based upon evidence, still, would the jury be warranted in finding a verdict for the defendant as they are here instructed to do "if Brister & Co., by their negligence, in any way contributed to the burning of the property?" Does this accurately describe contributory negligence? Suppose Brister & Co. had been guilty of negligence which contributed to the burning, by improperly building or in some other way, which did not do so as a proximate but as a remote cause. Under this instruction the idea of proximate cause is totally excluded, eliminated; the jury are left to look to any act of negligence, or what they may be pleased to deem negligence, however remote, in the chain of causes and visit its effect upon these appellants. 7 Am. & Eng. Ency. Law (2d ed.), 371; Railroad Co. v. Mason, 51 Wis. 234.

If the sole immediate cause of the injury was the defendant's negligence the plaintiff can recover, notwithstanding previous negligence of his own. The Vicksburg v. Jackson R. R. Co., 242, 487; Kerwhacker v. The Cleveland & Cincinnati R. R. Co., 3 Ohio St., 172; Pittsburg, etc., R. R. Co. v. Karnes, 13 Ind. 87; Richmond v. Sacramento, etc., R. R. Co., 18 Cal. 351; Stucke. v. Mil. & Miss. R. R. Co., 9 Wis., 202; Isbell v. New York, etc., R. R. Co., 27 Conn. 393; Railroad Co. v. Patton, 31 Miss. 193; Crow v. Vermont, etc., R. R. Co., 24 Vermont, 494; Thompson v. Duncan, 67 Ala. 336; Orleans v. Perry, 24 Neb. 835.

The instruction is unsound in that it reads, "If they (the jury) believe from the evidence in the case, or any part thereof, that Brister & Co., by their negligence, in any way contributed," etc.

If we read the record aright it does not appear to be an admitted fact in any sense that Brister & Co. were negligent in any regard; on the contrary the evidence shows that such was not the case; that no negligence could be imputed to them, and were it otherwise the duty rested on the jury to find it so upon conflicts in the evidence. Railway Co. v. Phillips, 70 Miss. 18; French v. Sale, 63 Miss. 386; Dunlap v. Hearn, 37 Miss. 471; Myrick v. Wells, 52 Miss. 149; McMurtry v. Railway Co., 67 Miss. 601; Hickman v. Railroad Co., 66 Miss. 154; Meyer v. King, 72 Miss. 9; Bank v. Murdock, 69 Mo. 73.

The case of A. & V. Ry. Co. v. Aetna Ins. Co., 82 Miss. 770, is conclusive on this point, because it denies that contributory negligence is ordinarily predicable of this class of cases.

The fifth instructicn for the defendant was most damaging to appellants, and the effect was in part due to an error arising from the failure to insert therein a qualifying phrase, thus: "And that the danger, if any arose subsequent to the inspection, and that the employes of Brister & Co., or the night watchman, who were on duty for Brister & Co., were charged with the duty of extinguishing fires in the service of Brister & Co., and that such employes knew thereof, and so knowing there and then" might have, by the exercise of reasonable care, prevented the burning of Brister & Co.'s property, and failed to do so.

Mayes & Longstreet and J. M. Dickinson, for appellee.

If the facts of this case submitted a close question for solution, or if the record did not demonstrate that the verdict rendered by the jury below was the only one the jury could have rightfully returned, on the whole evidence of the case, then it might be insisted that some consideration should be given to mere verbal criticisms of the instructions granted by the court.

But we respectfully submit to the court that an examination of this record will amply show that the case presented was one which would clearly have justified a peremptory instruction in favor of the company.

The testimony for plaintiff does not rise the presumption that the railroad company, through any act of itself or of its agents: caused the burning of the shed or the mill, nor even leave on the mind the impression that the action of the railroad employes in burning off the trash and debris on the right of way was likely to have been the cause of the fire in the mill

Giving plaintiffs' evidence full credit for all that it proves, or tends to prove, the conclusion is unavoidable that they have failed to make out their case and to answer the burden of proof on them, and that for this reason we are justified in the assertion that the facts of the case would have warranted a peremptory instruction for the defendant,

Of course we recognize the fact that the origin of a fire may be shown by...

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