Carolina, C. & O. Ry. Co. v. Unaka Springs Lumber Co.

• Decision Date: 14 November 1914
• Parties: CAROLINA, C. & O. RY. CO. v. UNAKA SPRINGS LUMBER CO.
• Court: Tennessee Supreme Court

170 S.W. 591

CAROLINA, C. & O. RY. CO. v. UNAKA SPRINGS LUMBER CO.

Supreme Court of Tennessee.

November 14, 1914.

Certiorari to Court of Civil Appeals.

Action by the Unaka Springs Lumber Company against the Carolina, Clinchfield & Ohio Railway Company. Judgment for plaintiff in the law court at Johnson City, Washington county, was affirmed by the Court of Civil Appeals, and defendant brings the case here by certiorari. Affirmed.

Powell, Price & Shelton and J. R. Simmonds, all of Bristol, Va., Walter H. Robertson, of Johnson City, and J. B. Cox, of Knoxville, for plaintiff in error. Harr & Burrow and Geo. C. Sells, all of Johnson City, for defendant in error.

FAW, J.

This suit was brought by the Unaka Springs Lumber Company, a corporation, in the law court at Johnson City, to recover damages for the alleged negligent burning, by the Carolina, Clinchfield & Ohio Railway Company, of a sawmill, some stacks of lumber, and other articles of personal property, situated at a place known as Hager's Siding, in Unicoi county.

The railway company interposed two pleas to the declaration, viz.: (1) Not guilty; and (2) a special plea averring that, in consideration of the construction by the railway company of a side track, or spur track, from the main line of the railway company to the sawmill of the lumber company, the latter had released the railway company from any and all liability for damages on account of the destruction of said property by fire.

There was a trial by jury, which resulted in a verdict for plaintiff of $2,500, with interest from May 24, 1912 — the date on which the fire occurred. From the judgment of the circuit court overruling its motion for a new trial, the lumber company appealed to the Court of Civil Appeals, where the judgment of the circuit court was affirmed, and, the writ of certiorari having been heretofore granted by a member of this court on petition of the lumber company, the cause is now before us upon assignments of error and brief of the lumber company, and reply brief on behalf of the railway company.

The sawmill and other property of the lumber company were destroyed by fire about 2 o'clock in the afternoon of May 24, 1912. The mill was "shut down," and no one was about the premises at the time, and the fire was not discovered until the property was partially consumed. The sawmill was about 120 feet from the main track of the railway company and on the land of the lumber company. It is not clear from the record whether the stacks of lumber destroyed were or not on the railroad right of way. A spur track built by the railway company pursuant to a contract with the lumber company extended from the main line of the railroad out to the sawmill.

Without undertaking to dispose of the assignments of error in the order of assignment on the record, we will consider the controlling questions raised thereby in the order most convenient.

It is insisted that the judgment of the court of Civil Appeals affirming the judgment of the circuit court is erroneous, because the circuit court erred in refusing to direct the jury to return a verdict for the railway company. Under this assignment of error three propositions are advanced on behalf of the railway company, viz.: (1) That there is no evidence that fire was communicated to the property of the lumber company from an engine of the railway company, and no evidence of negligence on the part of the railway company; (2) that, by virtue of a written contract in existence at the time of the fire in question, the railway company was exempt from liability for damages to the property of the lumber company occasioned by fire set out by the engines of the railway company; and (3) that the lumber company had no right to recover damages for the destruction of the property in question, because the legal title thereto was not in the lumber company, but was outstanding in a third party.

1. The response of the Court of Civil Appeals to the contention of the railway company that there was no evidence of negligence on its part was as follows:

"We have carefully examined this record with respect to the presence or absence of evidence to show communication of fire by sparks from the company's engine. While not very cogent, we are of opinion that there was introduced some material evidence from which the jury could infer that sparks large enough to set the property on fire were emitted by the engines of the company, and that the fire in question thus had its origin. If an engine emitted sparks of this magnitude, and there is specific evidence to this effect, then the jury were warranted in drawing the conclusion from this alone that the engine communicating the fire was defectively constructed."

We construe the foregoing excerpt from the opinion of the Court of Civil Appeals as a finding that there was some evidence of defective equipment of the engines of the railway company in the matter of spark arresters, and that such defective equipment was the proximate cause of the fire that destroyed the property of the lumber company. We do not think the record justifies this finding.

It is true there was testimony of three or four witnesses introduced by the lumber company showing that on occasions — in some instances days, in others weeks, and still others months — before the fire in question the witnesses saw sparks emitted from engines of the defendant railway company of sufficient size and wafted to a sufficient distance, in the neighborhood of the mill in question, to have set fire to said mill; but, while the railway company tacitly conceded that it had engines on its road which might emit sparks such as those described by the witnesses above mentioned, it was proven without controversy, and was conceded by plaintiff on the trial in the circuit court, that if the fire was set out by a railroad engine, it must have been set out by one of two engines particularly identified in the record. None of the witnesses above mentioned offered to testify that he had ever seen either of the two engines last mentioned emit any sparks.

The railway company proved by the witnesses Staley, Webb, Sublett, and Harmon that the two engines identified as above stated were practically new, of the most modern type of locomotive engines, and were equipped with spark arresters thoroughly up to the present state of the art, and in perfect repair at the time of the fire in question. Each of said witnesses testified from personal observation and knowledge of the engines in question. Staley was master mechanic of the defendant railway company, and had been employed in that capacity since the year 1908, prior to which service he had 27 years' experience in the mechanical department of the railway shops of the Norfolk & Western Railroad. Staley also shows that the type of spark arresters in use on said engines had been, recently before said witness testified, recommended by the "Master Mechanics' Association, who represent the mechanical men all over this country," as the best spark arrester manufactured.

Webb was an inspector and repairer of engines in the roundhouse and shops of the defendant railway company, and had been engaged in that capacity for more than 4 years before the fire in question, and prior to his services with the defendant railway company had had an experience of 19 years as a locomotive boiler maker. He had inspected the two engines and spark arresters in question shortly before and shortly after the burning of the sawmill of plaintiff, and testified that said spark arresters were in perfect condition at the time of each of said inspections.

Sublett and Harmon were the engineers in charge of each of said engines, respectively, and they testified with reference to the kind, character, and condition of the engines and spark arresters, and also with reference to the operation and running of their respective engines at the place where and the time when the fire occurred.

Only one of the witnesses who were offered by the lumber company for the purpose of showing the emission of sparks by the engines of the railway company undertook to speak with reference to either of the two engines which passed the sawmill a short time before the fire, and which, it was conceded, must have set out the fire, if it was set out by a railroad engine. This witness was Mrs. W. H. Bundy, who stated that she was "down over the bank 30 or 40 feet" from the railroad track, near her home, which was about three-quarters of a mile from the lumber company's sawmill, and that she saw the passenger train pass a short time before the fire; that the train was late, and was "running pretty fast"; and that as the train passed her she heard and saw cinders fall on a zinc tub and on the leaves. The witness said that she did not see any "coals of fire," or "fire sparks," but "just little cinders."

We do not think there is anything in Mrs. Bundy's testimony which tends to weaken the evidence of the railway company's witnesses concerning the equipment of the two engines in question; and we are of the opinion that the railway company successfully carried the burden of proving affirmatively that these two engines were properly constructed, and were equipped with spark arresters and other appliances of the latest and most approved character to prevent the emission of fire, all in good repair, and properly and skillfully operated. If the case had depended alone upon the averments in the declaration touching negligence in the equipment and operation of the engines, the railway company was entitled to peremptory instructions in its favor at the conclusion of all the proof below, because railroad companies are authorized to use and carry fire on their engines for the purpose of generating steam, and when they have the engines properly constructed and equipped with spark arresters and appliances of the latest and most approved character to prevent the escape of coals and cinders, in good repair, and carefully...