Brown v. Carolina Midland Ry. Co

• Decision Date: 28 November 1903
• Parties: BROWN . v. CAROLINA MIDLAND RY. CO.
• Court: South Carolina Supreme Court

46 S.E. 283
67 S.C. 481

BROWN .
v.
CAROLINA MIDLAND RY. CO.

Supreme Court of South Carolina.

Nov. 28, 1903.

RAILROADS — FIRES COMMUNICATED FROM RIGHT OF WAY—PLEADINGS—CONSTITUTIONAL LAW—EVIDENCE.

1. A complaint alleged that the depot of defendant railroad was situated on its right of way, and that the company allowed fire to remain so near the building that it caught fire, which fire was communicated to property of the plaintiff. Held to state a cause of action within Code Laws 1902, § 2135, providing that a railroad company shall be responsible to any person for damages to property by tire communicated by its locomotives or originating within its right of way.

2. An allegation in the complaint that the fire which injured the property of plaintiff originated in consequence of the act of defendant railroad company is equivalent to an allegation that the fire "originated in consequence of the act of any of defendant's authorized agents or employes, " as prescribed by Code Laws 1902, § 2135.

3. Code Laws 1902, § 2135, rendering a railroad company liable to the owner of the property injured by fire communicated from its right of way, is not unconstitutional, as in violation of the Constitution of the United States (article 14, § 1, of the amendments).

4. Under an allegation that a fire was communicated to plaintiff's property from a depot, it is competent to prove that the stove in the depot was defective.

5. A judgment will not be reversed for alleged error in the admission of evidence where the same kind of evidence is afterwards introduced by appellant.

6. The words "right of way, " as used in Code Laws 1902, § 2135, rendering a railroad liable for fire communicated by its locomotives or originating on its right of way, do not refer to the title of the railroad company, but are used to designate the locality from which a fire must originate to render the company liable.

7. That, in determining an objection raised, the court gave an erroneous reason, is no ground for reversal, where its conclusion was correct.

Appeal from Common Pleas Circuit Court of Barnwell County; Gage, Judge.

Action by Jennie Brown against the Carolina Midland Railway Company. Prom a judgment for plaintiff, defendant appeals. Affirmed.

Robt. Aldrich, Izlar Bros., and Bellinger & Townsend, for appellant.

Davis & Best, R. C. Holman, J. C. Patterson, and W. A. Holman, for appellee.

GARY, A. J. The nature of this action being in dispute, it will be necessary to refer to the complaint:

Paragraph 1 of the complaint alleges the corporate existence of the defendant. Para-

[46 S.E. 284]

graph 2 alleges that, as such corporation, it owns cars and engines, and operates its said railroad through the county of Barnwell. The other allegations of the complaint are as

follows:

"(3) That on or about the 9th day of January, A. D. 1899, the plaintiff was the owner of valuable buildings, known as the Brown Cotton & Manufacturing Company, * * * in the aggregate value of $10,000.

"(4) That on the night of the 10th or the early morning of the 11th (about 1 o'clock a. m.) of January, A. D. 1899, as hereinbefore alleged, the defendant corporation, whose depot was situated on its right of way, near its line of road, and the plaintiff's buildings and other property, as aforesaid, being situated a like distance therefrom, to wit, five or six feet, allowed fire to remain in or so near said depot building that the same caught or took fire, communicating same to plaintiff's buildings, as hereinbefore alleged, completely destroying them, together with the cornmill outfit, cylindrical cotton press outfit, cotton ginnery, gins, feeders, condensers, fans, shaftings, conveyers, and pulleys. That said fire also destroyed the cotton, corn, cotton seed, cans and cases, engines and boilers, shaftings and pulleys, and each and every article as enumerated in the third paragraph of this complaint.

"(5) That, among other things, it was the duty of the defendant company to retain a night watchman at and around said depot, at night, to prevent such conflagrations as herein complained of, which they failed, negligently, so to do.

"(6) That said fire would not have occurred but for defendant's carelessness and negligence in allowing the same to remain in their stove or heater in said depot, and other fire to remain near or about said depot, and the plaintiff further charges that said defendant allowed a box car to stand between their depot and plaintiff's buildings in a dangerous condition, to wit, a hot box being thereto attached, all of which facts were well known, or should have been known, to said defendant; and by reason of the aforesaid facts the defendant has damaged the plaintiff ($10,-000) ten thousand...