Burke v. Louisville & Nashville R.R. Co.

• Decision Date: 10 February 1872
• Citation: 54 Tenn. 451
• Court: Tennessee Supreme Court
• Parties: MARGARET BURKE v. THE LOUISVILLE & NASHVILLE RAILROAD COMPANY.

54 Tenn. 451

MARGARET BURKE

v.THE LOUISVILLE & NASHVILLE RAILROAD COMPANY.

Supreme Court of Tennessee.

Feb. 10, 1872.

FROM SUMNER.

From the Circuit Court, October Term, 1871. JAS. E. RICE, J.

J. W., C. R. & LEE HEAD for plaintiff in error.

The mother had no right to recover for the destruction of the clothing of her children.

The court below erred in admitting evidence as to damage done by sparks from other engines previously to the burning of plaintiff's house. Negligence at other times, if it existed, not relevant to show negligence at the time in question.

It was error to charge that the proper measure of damages was the cost of replacing the property destroyed. The correct rule is, the value of the property at the time and place of its destruction. Wylie v. Smitherman, 8 Ired., 236.

It was error to refuse to charge, as requested, that if the plaintiff sought to recover upon the ground of the negligence of the company, it devolved upon her to establish the fact of such negligence. Bachelder v. Hogan, 6 Shep. (Me.) 62; Railroad Co., v. Yeiser, 8 Barr, (Pa.) 366.

It was error to refuse to charge, as requested, that if defendant had been in the habit of using both wood and coal upon its road, its use of wood although more dangerous than coal, was not negligence, if the usual and approved inventions were adopted by it for preventing accidents by fire.

The court erred in refusing to charge, as requested, that if plaintiff built her house after the completion of defendant's road, she was bound, in locating the house and selecting materials for its construction, to exercise reasonable precaution against damage by fire, from the proper use of the road, and that she could not recover unless she had done so.

The verdict is not sustained by the evidence. There is no evidence of negligence. A railroad company is not responsible for damage resulting from a proper use of its road. Burroughs v. The Housatonic R. R. Co., 15 Conn., 124; 4th Tenn. R., 794; 2 John., 283; 8 Cow., 146;21 Pick., 144; 8 John., 421; 12 Mass., 220; 17 John., 92.

G. W. & B. F. ALLEN for defendant in error.

Proof that the ordinary working of the engine would not have resulted in the destruction of the premises establishes negligence. Hull v. Sacramento R. R. Co., 14 Cal., 387; Shearman & Redfield on Negligence, p. 380.

Evidence of previous negligence admissible to establish probability in present case. Ib., pp. 380-1.

If origin of fire established, it devolved upon the company to show that all necessary precautions were used. Ib. And whether sufficient precautions were used, is a question for the jury. Hayette v. Philadelphia and Reading R. R. Co., 23 Penn. St., 373.

If the court erred in charging that the measure of damages was the cost of replacing the property destroyed, still this did not prejudice the company; for the proof was clear that the property was worth more than the damages allowed.

The mother was entitled to recover for the clothing of her minor children, there being no father nor testamentary guardian. Schouler's Domestic Relations, 334, 349; Dickinson v. Winchester, 4 Cush., 114; Parmele v. Smith, 31 Ill., 629.

Plaintiff's building in an exposed position did not deprive her of the right to rely upon the exercise of proper precautions by the company; nor relieve it of liability for negligence. Shearman & Redfield on Negligence, pp. 30 and 31.SNEED, J., delivered the opinion of the Court.

The plaintiff brought this action to recover judgment for the alleged destruction by fire of her house and furniture on the night of the 15th of September, 1870, which she charges were ignited by sparks of fire from the locomotive engine of defendant. The value of the property shown to have been destroyed by the fire, including the building and furniture, and the clothing of herself and her minor children, was about $1,400. The verdict of the jury ascertained her damages to be $1,063, upon which judgment was pronounced, and an appeal in error taken by defendant.

The defendant is an incorporated railroad company, and had constructed its road some years before house of the plaintiff was erected. The building stood upon the south side of the defendant's road, and distant about thirty yards therefrom. There is no positive testimony as to the fact of ignition, but the question was submitted to the jury upon the circumstantial evidence adduced, and they believed that the fire was occasioned in the manner charged, and have pronounced accordingly. It is shown that at 9:40 p. m., on the night of the fire, two freight trains passed the house of the plaintiff in the village of Hendersonville, and it was observed by persons in the vicinity, that large quantities of sparks were emitted from the smokestacks of the engines, which were borne upon a light wind in the direction of the plaintiff's house. The building was of wood and roofed with cypress shingles. The family had retired and were asleep at the moment the trains were passing. The plaintiff and her daughters, and others, tenants of the building, testify that there had been no fire upon the premises after six o'clock that evening, that but one candle had been lighted in the house that night, which, with the fire in the cooking stove, had been extinguished before the family had retired for the night. The plaintiff states that “something after ten o'clock,” to use her own words, she was awakened by a noise as of “crackling timber” in the burning house, and upon running out she discovered the roof of the building nearest the railroad on fire, that she aroused the family, all of whom escaped, and that the house and nearly all its contents were rapidly consumed. It was shown, as already stated, that on the night in question, the engines of the defendant as they were passing the village, were ejecting a great quantity of sparks. It was also shown that one of the engines on that night was burning coal fuel and the other wood, and that the latter generated more sparks than the former. And over the objections of the defendant, it was also shown that on previous occasions other engines of the defendant had been seen to emit sparks which were borne much further on a light wind than the distance between the road and the plaintiff's house, sometimes fifty yards, at others the length of a train of twenty cars, and that fences and grass along the way had now and then been ignited by the falling sparks. It was also shown that in the last half mile in the approach to the village in the direction the trains were going that night, there was an up-grade, and that the emission of sparks was incessant by the increased labor of the engines upon an ascending grade. On behalf of the defendant, it was shown by the two engineers on the respective trains, that on passing the plaintiff's house that night their smoke stacks were in good order, and that they were not emitting an unusual quantity of sparks. It was shown also that the engines drawing freight trains were only allowed to ply between the cities of Nashville and Bowling Green, and that upon the daily arrival of trains at Bowling Green, it was the unvarying rule of the company to have each engine run into the round-house for inspection, and for repairs if any should be necessary, and that no engine is permitted to start on another trip until it shall have been thus inspected.

The inspector testifies that on the evening of the 15th of September, 1870, before the two engines in question left Bowling Green for Nashville, he had carefully inspected the smoke-stack of each, and both were found to be in perfect order; that the locomotives used at that time by the defendant were of the best and most approved class, and only those with all the latest and best improvements attached were used. The smoke-stacks are described as being built with two stacks, an outer and an inner stack; over the inner stack is a cone against which sparks strike as they ascend and are thrown back. Above this cone, and covering the mouth of the outer stack, is a wire netting, known as a spark catcher. This is made very firm so as to prevent the escape of any large sparks. All the locomotives used by defendant are constructed in this way. The two engines in question were carefully inspected by this witness before they started on their trip on the evening of the 15th of September, 1870. They were found to be in perfect order and provided with all the improvements mentioned to prevent injury or accident by fire. Upon cross-examination the witness stated that if the smokestacks were right they could not throw out any sparks large enough to do damage, and that if they did emit sparks in immense quantities, it would be evidence that they were out of repair. It is shown that the smoke-stack of a locomotive is injured by long use, but the length of time the two engines in question had been in use is not stated; nor is the distance between Bowling Green and Hendersonville given. The master mechanic of the company testifies that it is impossible to construct an engine so as to prevent the escape of sparks. If it were done it would destroy the use of the engine, as then there would be no draught, and consequently the engine could not do its work; that some sparks will necessarily escape. He states that a wood-burner is more dangerous than a coalburner; but in 1870 the supply of coal was not sufficient to enable the defendant to use coal altogether. He says that sparks from a smoke-stack would be carried on a light wind from fifty to one hundred yards; that he had heard of engines used in cities on street-cars from which sparks did not escape, but he never heard of one so constructed that it could be used upon an ordinary railroad, and that the smothering of the draught so as to prevent entirely the escape of sparks would destroy the efficiency of the engine.

Upon this state of facts, the Court, among other things not excepted to, charged the jury as follows: “If you find from the testimony that...