Cairo, Trumann & Southern Railroad Company v. Brooks
| Decision Date | 06 April 1914 |
| Docket Number | 240 |
| Citation | 166 S.W. 167,112 Ark. 298 |
| Parties | CAIRO, TRUMANN & SOUTHERN RAILROAD COMPANY v. BROOKS et al |
| Court | Arkansas Supreme Court |
Appeal from Poinsett Circuit Court; W. J. Driver, Judge; affirmed.
Judgment affirmed.
George B. Webster, for appellant.
1. There was no legal evidence to sustain the verdict. The verdict should have been for defendant. Conceding that the occurrence of a fire shortly after the passing of a locomotive may be taken as presumptive evidence that the locomotive set out the fire, the further presumption that it was a case of negligence can not be indulged. 11 Wall. 438 92 U.S. 281; 100 Id. 693; 113 Mo. 570.
2. One presumption can not be built upon another presumption. 10 Ark. 211; 11 Id. 212; 77 Id. 436; 126 Mo.App. 88.
3. It was error to allow the attorney's fee. 32 Ohio C. C. 91; 53 Oh. St. 23; 165 U.S. 150; 174 Id. 96.
Lamb Caraway & Wheatley, for appellee.
1. The evidence shows that the fire was ignited by sparks from the engine and excluded any other possible origin. 76 Ark. 132; 77 Id. 434; 89 Id. 373; Ib. 572; 92 Id. 569; 100 Id. 569; Ib. 207; 104 Id. 79; 105 Id. 374.
2. The act of 1907 is constitutional. 89 Ark. 572; 17 S.Ct. 243.
3. That part allowing attorney's fees is constitutional. 86 Ark 115; 19 S.Ct. 609; 174 U.S. 96; 207 Id. 73; 156 Ind. 685.
4. The appeal is frivolous and 10 per cent penalty should be allowed.
Separate actions were instituted by appellees against appellant to recover damages on account of destruction by fire of a barn, and personal property situated therein, located near appellant's railroad track, and the two actions were consolidated and tried together, resulting in a verdict in favor of each of appellees for the value of the property destroyed, and also for attorney's fee in each case.
It is alleged in each of the complaints, and the testimony tends to prove, that the fire was communicated to the barn by a passing engine operated by appellant's employees. The fire occurred in the daytime, and the evidence tends to show that it broke out about ten minutes after a train passed along, that there was a slight upgrade of the track near the barn and that cinders were emitted from the smokestack. The evidence also tends to negative the origin of the fire from other causes.
A statute of this State imposes liability upon railroad companies for damage on account of fire caused by the operation of trains, regardless of the negligence of the employees of the company (Act 141, April 2, 1907), and the constitutionality of that statute has been upheld. St. Louis & S. F. Rd. Co. v. Shore, 89 Ark. 418, 117 S.W. 515.
The statute provides that: "If the plaintiff recover in such suit or action, he shall also recover a reasonable attorney's fee," and that feature of the statute is sustained by decisions of the Supreme Court of the United States. A. T. & S. F. Ry. Co. v. Matthews, 174 U.S. 96.
This court has held, in a long and unbroken line of decisions that, where property near a railroad track is discovered to be on fire shortly after a train has passed, and the proof does not establish some other origin of the fire, an inference is justified that the fire originated in sparks from the engine of the train. Railway Co. v. Dodd, 59 Ark. 317; Kansas City So. Ry. Co. v. Harris, 105 Ark. 374, 151 S.W. 992.
In St. Louis, I. M. & S. Ry. Co. v. Dawson, 77 Ark. 434, 92 S.W. 27, we said:
It is insisted that the judgment in this case can not be sustained without proof of negligence on the part of the appellant, for the reason that the complaint contains an allegation of negligence, and that the action is there. fore not based on the statute.
The complaint justifies recovery under the statute notwithstanding the allegations of negligence, for the rights...
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... ... with respect to persons other than chartered railroad ... corporations. Ry. v. Shore, 89 Ark. 423 ... Held ... Ry. Co. v. Harris, 105 Ark. 374, 151 ... S.W. 992; Cairo, T. & S. Rd. Co. v. Brooks, ... 112 Ark. 298; St. Louis, ... ...
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