Bros v. Seabd. Air Line Ry.&dagger
| Decision Date | 27 October 1910 |
| Citation | 87 S.C. 178,69 S.E. 156 |
| Court | South Carolina Supreme Court |
| Parties | McGILL BROS. v. SEABOARD AIR LINE RY.† CONNOR v. SAME (two cases). |
In an action against a railroad for a fire set by a locomotive, evidence of other fires communicated by other locomotives of the railroad under similar conditions at or near the same time is admissible to show a probability that the fire was set by the locomotive, but evidence of other fires is inadmissible, unless the conditions and the time are approximately the same.
[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1719-1723; Dec. Dig. § 481.*]
2. Railroads (§ 481*) — Fires — Evidence — Admissibility.
In an action against a railroad for fire set by a locomotive, a question whether a witness had seen locomotives of the railroad set out fires there before is properly excluded.
[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1717-1729; Dec. Dig. § 481.*]
3. Railroads (§ 481*) — Fires — Evidence — Admissibility.
Where the court in an action against a railroad for a fire set by a locomotive excluded a question whether witness had seen locomotives of the railroad set out fires there before, and stated in response to an inquiry of plaintiff whether he could prove by the witness the setting out of any other fires by locomotives of the railroad that any testimony that the particular locomotive set out any other fire was admissible, but that evidence that any other locomotives set out fires was not, the court did not err in excluding all evidence of fires set by other locomotives under similar conditions and at approximately the same time, in the absence of anything to indicate that counsel expected to prove by the witness that fires occurring about the same time were set by the locomotives of the railroad.
LEd. Note.—For other cases, see Railroads, Cent. Dig. §§ 1717*-1729; Dec. Dig. § 481.*]
Appeal from Common Pleas Circuit Court of Lexington County; Geo. E. Prince, Judge.
Actions by McGill Bros, and by James W. Connor, individually, and by him as administrator, against the Seaboard Air Line Railway. From a judgment for defendant in each action, plaintiff in each action appeals. Affirmed.
John T. Seibels and T. C. Sturkie, for appellants.
Lyles & Lyles and Efird & Dreher, for respondent.
In these actions for the recovery of damages for injury to land caused by a fire alleged to have been set out by sparks from one of defendant's locomotives, the verdict was for the defendant. The actions being under section 2135 of the Civil Code of 1902, which makes railroad companies liable for damages from fire communicated by their locomotive engines without respect to negligence, the main issue was as to the origin of the fire. On the part of the plaintiffs there was evidence that the fire started near the railroad track soon after a locomotive had passed. The defendant introduced evidence tending to show that the woodlands of the plaintiffs might have caught fire from an old tree burning near by.
The exceptions assign error in the exclusion of the following question asked by plaintiffs' counsel of the witness Gardener: "Had you seen the engines of the defendant company set out fires along there before?" The rule of evidence adopted by the courts with practical unanimity in cases like this is that on the issue of the origin of the fire evidence of other fires communicated by other locomotives of the defendant company under similar conditions and at or near the same time is admissible as tending to showa probability that the fire under investigation was set out in the same way. Grand Trunk Ry. Co. v. Richardson, 91 U. S. 454, 23 L. Ed. 356; Texas & Pac. Ry. Co. v. Watson, 190 U. S. 287, 23 Sup. Ct. 681, 47 L. Ed. 1057. The cases are collated in 33 Cyc. 1371, and 13 Am. & Eng. Ency. 515, and are too...
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