Chesapeake & O. Ry. Co v. Heath

• Decision Date: 22 September 1904
• Citation: 103 Va. 64,48 S.E. 508
• Court: Virginia Supreme Court
• Parties: CHESAPEAKE & O. RY. CO. v. HEATH.

48 S.E. 508

103 Va. 64

CHESAPEAKE & O. RY. CO.

v.HEATH.

Supreme Court of Appeals of Virginia.

Sept 22, 1904.

RAILROADS—STARTING FIRES BY SPARKS FROM ENGINE—NEGLIGENCE—EVIDENCE—SUFFICIENCY—BURDEN OF PROOF.

1. In an action to recover damages for alleged negligence, the burden is on plaintiff to show negligence by a preponderance of the evidence.

¶ 1 See Negligence, vol. 37, Cent Dig. § 224.

2. In an action to recover damages for alleged negligence, where it appears that the injury may have resulted from one of two causes, for one of which defendant is liable, but not for the other, plaintiff cannot recover.

3. In an action to recover damages for alleged negligence, where it is just as probable that the damage was the result of one of two causes as the other, for one of which defendant is liable, but not for the other, plaintiff cannot recover.

4. In an action against a railroad to recover damages for alleged negligence in setting fire to plaintiffs flour mill by sparks from defendant's engines, evidence held insufficient to establish negligence on defendant's part.

Error to Circuit Court, Albemarle County.

Action by Thomas S. Heath against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Leake & Leake, for plaintiff in error.

D. Harman and F. C. Moore, for defendant in error.

HARRISON, 3. The defendant in error, Thomas S. Heath, instituted this action to recover of the plaintiff in error damages for the alleged negligent burning of his flour mill while operating and running certain engines and cars on its right of way through the town of Scottsville.

The mill was found to be on fire about 10 o'clock on the night of November 8, 1901. It had been closed that evening at 6 o'clock. Between the hours of 4:30 p. m. of that afternoon and 7:50 p. m., several trains passed the mill; the last arriving at 7:30 and leaving at 7:50 p. m. The mill in question was situated in the town of Scottsville, the south end of the main building being 86 feet north of the railroad track. Between the main building and the track there was a two-story shed or addition, used in connection with the mill, the south end of which was 66 feet north of the track. The mill was built of brick, and covered with slate, and the shed was covered with tin. A wooden spout, made of pine plank, which served to carry off the dust, chaff, etc., blown from the wheat by the separator, came through an attic window, and ran down the brick wall to the shed roof, and over the same to its outer edge. The mill was burning on the inside of the attic when the fire was first discovered. In the attic were several pieces of machinery, among them a smut machine, shown to be dangerous because of its liability to cause fire, and also a bran duster, which the plaintiff admits had on a former occasion caught fire from friction. There was also at the north end of the mill the plaintiff's own engine, fired with wood, and a stove with fire therein in the second story of the shed, which communicated with the mill, and was occupied by employes, who slept there. At the time of the fire, the view of the plaintiff, expressed to a number of persons, was that the mill was set on fire by a hot box in...