Clisby v. Mobile & O.R. Co.

• Decision Date: 20 May 1901
• Parties: CHARLES B. CLISBY, USE, ETC., v. MOBILE & OHIO RAILROAD COMPANY. [*]
• Court: Mississippi Supreme Court

29 So. 913

78 Miss. 937

CHARLES B. CLISBY, USE, ETC., v. MOBILE & OHIO RAILROAD COMPANY. ^[*]

Supreme Court of Mississippi

May 20, 1901

FROM the circuit court of Clay county. HON. CHARLES H. CAMPBELL Special Judge.

Clisby who sued for the use of the Home Insurance Company, the appellant, was the plaintiff in the court below; the railroad company was defendant there. The facts are stated in the opinion of the court.

Affirmed.

Green &amp Green, for appellant.

In view of the conflict of the evidence on the most material issues in the case, it was essential there should be no errors of law in the instructions to the jury. Chapman v. Copeland, 55 Miss. 476. This was not only not done, but the instructions themselves are in hopeless conflict.

By the third instruction for the plaintiff the jury was told that, if the cotton was set on fire by sparks from defendant's locomotive while running within the corporate limits at a greater rate of speed than six miles an hour, and in generating and maintaining that speed, then, this was negligence and the jury should find for the plaintiff. This instruction was in strict accord with Railway Co. v. Carter, 77 Miss. 516; Jones v. Railroad Co., 75 Miss. 970; Crawley v. Railroad Co., 70 Miss. 340; Insurance Co. v. Railroad Co., 70 Miss. 119; Railroad Co. v. McGowan, 62 Miss. 697; Railroad Co. v. Jordan, 63 Miss. 460; Railroad Company v. Toulme, 59 Miss. 284; code of 1892, § 3546; acts of 1896, p. 76, whereby it is declared, "and the company shall be liable for any damages or injury which may be sustained by any one from such locomotive or cars whilst they are running at a greater rate of speed than six miles an hour."

The defendant's second, third, fifth, sixth, seventh and ninth instructions were in direct conflict with plaintiff's third one, and the court thus left the jury to select which of the conflicting theories of the law it would adopt.

A railroad company is liable for a violation of a statute as per se negligence and without express liability being declared. Meyer v. King, 72 Miss. 11; 1 Sher. & Red. on Neg., sec. 13, and note; Knoff v. Railway Co., 20 A. & E. R. R. Cas., 175; 3 Elliott on Railroads, sec. 195; Tobey v. Railroad Co., 94 Iowa. 258; Graney v. Railroad Co., 149 Mo. 89; Schelereth v. Railway Co., 101 Mo. 87; Dallemand v. Saalfeldt, 175 Ill. 815; Railroad Co. v. Sampson, 112 Ala. 435; Railroad Co. v. Barnhardt, 115 Ill. 399; Sheehan v. Boston, 171 Mass. 296; Miller v. Ammon, 145 U.S. 421; 15 Am. & Eng. Enc. L. (2d ed.), 941, 937.

That the statute embraces damage from fire from locomotives is settled. Insurance Co. v. Railroad Co., 70 Miss. 139; Tribette v. I. C. R. R. Co., 71 Miss. 212.

The fact that a high wind carried the sparks would not excuse. 2 Sher. & Red. on Neg., sec. 666, and cases; Milwaukee v. Kellogg, 94 U.S. 469; Atkinson v. Goodrich, 60 Wis. 141; Cooley on Torts, p. 77; Bishop on Con. Law, sec. 450; Railroad Co. v. Stinson, 74 Miss. 457.

To prevent escape of fire the company must use the "most approved safeguards." Wiley v. Railroad Co., 44 N. J. L., 247. "The best mechanical contrivance in known, practical use." Railway Co. v. Rogers, 76 Va. 443.

The company was not only bound to use all due care and skill in the prevention of the mischief, but also are bound to avail themselves "of all the discoveries which science has put within reach, provided they are such as under the circumstances it is reasonable to require the company to adopt." Spaulding v. Chicago, 30 Wis. 110; Dimmock v. Railway Co., 4 F. & F. (Iowa), 63; Railroad Co. v. Nelson, 51 Ind. 153; Railroad Co. v. Hall, 58 Ill. 409; Railroad Co. v. Schultz, 93 Pa. St., 341; Railroad Co. v. Levi, 13 Am. & Eng. R. R. Cas., 464.

Critz, Beckett & Kimbrough; F. G. Barry and A. J. Russell, for appellee.

There is no reason or law which creates a presumption from the burning of appellant's cotton that it was set on fire by the appellee company. Farquhar v. Alabama, etc., Ry. Co., ante,--; Owens v. Illinois, etc., R. R. Co., 77 Miss. 142; New Orleans, etc., R. R. Co. v. Bourgeois, 66 Miss. 3; Mobile, etc., R. R. Co. v. Holt, 62 Miss. 170.

The appellee was not required by law to provide the very best appliances, spark arresters, etc. Kent v. Yazoo, etc., R. R. Co., 77 Miss. 494; Patton v. I. & P. Ry. Co., 179 U.S. 664.

Even if the train was running at an unlawful rate of speed this did not impose liability on the appellee unless there was causal connection between the speed and the injury. Bell v. Alabama, etc., R. R. Co., 3 Am. & Eng. Ry. Cas. (N. S.), 448, S. C. 19 So. 316, S. C. 108 Ala. 286; Farquhar v. Alabama, etc., Ry. Co., supra; Collins v. Illinois, etc., R. R. Co., 77 Miss. 855; Alabama, etc., Ry. Co. v. Carter, 77 Miss. 511; Jones v. Illinois, etc., R. R. Co., 75 Miss. 970; Howell v. Illinois, etc., R. R. Co., 75 Miss. 242.

The use of the diagram by counsel, for appellee, in his argument to the jury, was not improper; certainly was within the discretion of the court below. Hill v. Waterworks, 77 Hun. (N.Y.), 493; Battishill v. Humphreys, 64 Mich. 513.

Argued orally by Marcellus Green, for appellant, and by R. C. Beckett and A. J. Russell, for appellee.

OPINION

LEFTWICH, Special J.

This was an action by C. B. Clisby for the use of the Home Insurance Company against the Mobile & Ohio Railroad Company to recover the value of 472 bales of cotton destroyed by fire March 6, 1899, in the sheds and grounds of the compress company, situated within the corporate limits of West Point, Mississippi. The gist of plaintiff's action is stated in its amended declaration as follows: "That on said day defendant so negligently operated its locomotive passing along said tracks, and when in close proximity to said baled cotton, as to emit therefrom large, unusual, and dangerous sparks of fire, and said locomotive was, by defendant, then and there so negligently and improperly equipped with spark-arresting apparatus, and said spark-arresting apparatus was then and there so negligently out of repair as that it permitted large and unusual and dangerous sparks in large and unusual quantities to be emitted; and at the time of such emission of said sparks said defendant was negligently and unlawfully using its locomotive within the corporate limits of West Point, and at a greater rate of speed than six miles an hour, and in attaining and maintaining said unlawful rate of speed said large and dangerous sparks of fire in said large and unusual quantities were so negligently emitted from said locomotive that said sparks of fire, so negligently caused and permitted to be emitted from said locomotive, were carried by the high wind then blowing in and upon said cotton, and the same was thereby, and by the said negligence of defendant, set on fire, and the fire, there set out under the influence of the high wind then blowing, was carried from bale to bale, and the said cotton of said Clisby was then and there damaged and destroyed by said fire." To this declaration defendant pleaded the general issue, a trial was had, and a verdict rendered in behalf of the defendant railroad by the jury. Plaintiff's motion for a new trial being overruled, it appeals to this court.

The compress, where the cotton was burned, was situated at the junction of the Mobile & Ohio and Illinois Central railroads, defendant's track running near the compress platform on the west. A strong northwest wind was blowing at the time of the fire immediately across defendant's track and towards the compress, which was destroyed along with plaintiff's cotton. The fire was so sudden and fierce that one of the employed of the compress company was burned up in the flames. Defendant's locomotive, No. 89, drawing a train of freight cars, passed north over its track about the time of the fire. There is a conflict as to its rate of speed while passing the point where the fire was first discovered, plaintiff's witnesses estimating it at about fifteen miles an hour, while defendant's swore it was from about three to five miles.

There is evidence that defendant's train stopped at the Illinois Central crossing, about 467 feet south from where the cotton took fire, and also at the crossing of the Southern railroad, about 486 feet still further south.

The testimony of plaintiff tended to show that the fire caught from sparks emitted from defendant's locomotive, while, on the part of defendant, there was evidence rebutting this fact and some tending to prove that the cotton was ignited by parties seen smoking near the point when the fire broke out. There was much evidence pro and con as to whether the spark arrester used on the locomotive was of the best pattern, and it was asserted by plaintiff that it was not in good repair and was negligently operated at the time. It is sufficient for us to say that we have carefully read the voluminous record and there is found testimony therein to sustain a verdict either for plaintiff or defendant, and that rendered in behalf of defendant is abundantly supported and must end the cause, unless reversible error of law was committed by the court below.

It is assigned for error that the trial court permitted counsel for defendant to show to the jury in argument a diagram of a locomotive which had been minutely described in evidence in words. When objection was made to the use of this diagram the presiding judge instructed the jury that it was not evidence and refused to allow it to be carried into the jury room when they retired. The counsel using it disclaimed its being evidence. We cannot say this was error. A proper latitude must be granted counsel in arguing the cause, under the oversight and in the sound discretion of the trial court. The diagram was a pictorial illustration of what the witnesses had said...