Chesapeake & O. Ry. Co v. Ware

• Decision Date: 24 January 1918
• Court: Virginia Supreme Court
• Parties: CHESAPEAKE & O. RY. CO. v. WARE.

95 S.E. 183

CHESAPEAKE & O. RY. CO.

v.WARE.

Supreme Court of Appeals of Virginia.

Jan. 24, 1918.

Rehearing Denied March 21, 1918.

Error to Circuit Court of City of Williamsburg and County of James City.

Action by W. Walker Ware against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

This is an action of trespass on the case by the defendant in error (hereinafter referred to as plaintiff), against the plaintiff in error (hereinafter referred to as defendant), seeking to recover damages to certain timber on the land of plaintiff adjacent to the railroad right of way of the defendant, caused, as is alleged, by a fire set out by the defendant on the—— day of April, 1915.

The declaration contained three counts. There was a demurrer to the declaration and to each count thereof, which was overruled by the trial court.

The allegations drawn in question by the demurrer were in substance as follows:

Each count undertook to charge both that the defendant set out the fire and that it negligently did so.

The grounds of demurrer are, in substance, that all of the counts were insufficient, in that they did not charge facts from which the negligence aforesaid could be inferred.

In addition to the allegations aforesaid of negligence, the first and second counts alleged that the fire was set out by the defendant "by a spark emitted from" one of its engines, and the third count alleged that the fire was set out by the defendant "by a spark from" one of its engines. None of the grounds of demurrer challenges the sufficiency of such counts to allege the fact that the fire was set out by a spark dropped or thrown from one of defendant's engines.

There was a trial by jury, a demurrer to evidence by the defendant, and a verdict of the jury subject to such demurrer. Such demurrer was overruled by the trial court.

The Material Facts, etc.

The facts and certain material details of evidence bearing on the material questions of fact raised by the assignments of error are as follows:

(a) Concerning the place of origin of the fire, in reference to its proximity to the railroad of the defendant:

The testimony for the plaintiff did not, of itself, fix the place of origin of the fire. But that testimony, when considered along with the testimony of J. C. Williamson, a witness for defendant, who after the fire examined the area burned over (which testimony is not in conflict but in accord with the evidence for the plaintiff), was sufficient to warrant the jury in finding the fact to be that the fire originated on the north side of the railroad (on the same side of it as plaintiff's said land), either upon plaintiff's land or upon a small point of timbered land of a neighbor of his adjacent to the railroad and to plaintiff's land, and at a place sufficiently close to the railroad for it to have been set out by a spark from one of the locomotive engines of the defendant.

(b) Concerning the question of fact whether a locomotive engine of the defendant, drawing its mail train, passed along by the point of origin of the fire a short time before it originated:

There was no direct evidence in the case that any engine of any train of defendant passed said point at the time in question. The evidence for the plaintiff on this subject was wholly circumstantial. It consisted in proving that a mail train of the defendant was, by its schedule of trains, due to pass along by such point at such time. The direct evidence on this point may be best illustrated by extracts from the testimony of the plaintiff's witnesses on the subject as follows:

One of such witnesses testified:

"Q. Had any trains of the Chesapeake & Ohio passed by there at any time, close to that time, before that?

"A. I didn't notice any trains, but I think there is some scheduled about that time."

The other witness for plaintiff on this subject, who noticed the fire somewhat later than the former witness, testified:

"Q. Do you know of any train that had passed there?

"A. I never took any notice of it. I live right these, and they pass and repass, and I don't take any notice of them, but it was a ll o'clock train that would have gone by some time when I saw the fire. '

"Q. The 11 o'clock train had gone by some time?

"A. Yes, sir.

"Q. The 11 o'clock train is what train?

"A. That is a mail train, a fast train. Somewhere around about 11 o'clock. We always call it the 11 o'clock train."

The defendant introduced no evidence on the subject of whether the train in question passed said point at the time in question.

(a) Concerning the question of fact whether there was any other causal agency for the origin of the fire than a spark from the engine of said mail train of defendant:

There is no evidence in the case of any other cause of the fire other than that tending to show that it was set out by a spark thrown from the engine of said mail train of defendant.

S. O. Bland and R. G. Bickford, both of Newport News, and Henry Taylor, Jr., of Richmond, for plaintiff in error.

Frank Armistead and Ashton Dovell, both of Williamsburg, for defendant in error.

SIMS, J. (after stating the facts as above). [1] 1. In regard to the position taken by the demurrer, mentioned in the above statement, that the declaration was insufficient in its charges of negligence in the respective counts thereof, the following is deemed sufficient to say:

Since, under the Featherstone Act (Acts 1908, p. 388), it was not necessary for the plaintiff to have alleged that the fire was negligently set out by the defendant (N. & W. Ry. Co. v. Spates, 94 S. E. 195), the allegations of such negligence drawn in question by the demurrer may be regarded as surplusage. Therefore it is unnecessary for us to inquire whether such allegations were sufficient allegations of such negligence. Farther, as the demurrer does not challenge the sufficiency of the declaration to allege the setting out of the fire under the Featherstone Act, that question is not raised by the demurrer, and it is unnecessary for us to consider that question.

We, therefore, find no error in the action of the trial court in overruling the demurrer.

2. There are two assignments of error raising important and interesting questions arising from the action of the trial court in permitting certain testimony to be introduced before the jury by the plaintiff, over the objections of the defendant, relied on by the former as evidencing an express admission, and admissions by conduct of the latter, of its liability. In the view we take of the case, however, as hereinafter set out, we consider that the evidence in the case for plaintiff, independent of the testimony drawn in question by the two assignments of error here referred to, was sufficient to sustain the verdict of the jury. Therefore it is unnecessary for us to pass upon the questions raised by such assignments of error.

3. In addition to the material facts above stated, it should be added, perhaps, for a better understanding of the instant case, that the fire was first discovered by a witness who was about three-fourths of a mile therefrom at the time he discovered it; that this witness first observed a "tremendous smoke" and got to the fire as quickly as he could afoot, and found the fire burning on plaintiffs land about 150 or 200 yards from the right of way of defendant; that the fire was then coming from the direction of such right of way, going with the wind, which was at the time blowing from said right of way towards plaintiff's land; and that witness gave it as his opinion (unobjected to) that he did not think the fire had been burning ten minutes when he saw it.

These facts, taken in connection with the facts stated in paragraphs (a) and (c) of the statement of material facts above (which are, in substance, that the fire originated sufficiently close to the railroad for It to have been set out by a spark from the engine of the mail train of defendant above referred to, and that there was no evidence in the case of any other cause of the fire), bring this case within the holdings of this court in C. & O. Ry. Co. v. May, 120 Va. 790, 92 S. E. 801, and Atlantic, etc., R. Co. v. Wat-kins, 104 Va. 154, 51 S. E. 172, to the effect that the circumstances attending the commencement of the fire warranted the jury in finding that the fire was set out by said passing train of the defendant, as charged in the declaration, if the evidence set out in paragraph (b) of the statement of facts and evidence above was sufficient to warrant the jury in inferring, and thus finding, it to be a fact that such train did pass along by the point of origin of the fire a short time before the fire originated. Therefore the turning point in the case, upon the issue of fact as to whether the defendant set out the fire as charged in the declaration, is the question:

4. Was the evidence set out in paragraph (b) above sufficient to warrant the jury in inferring, and thus finding, it to be a fact, that said train did pass along by the | point of origin of the fire a short time before the fire originated?

Upon this question two positions are taken for the defendant. They are, in effect, as follows:

(1) That the evidence set forth in said paragraph (b) is insufficient to warrant the jury in making the inference of fact that the train did pass along as aforesaid at the time in question: that the scheduled time of the train proves nothing; that it may have been on time or it may have been late. It may have...