Colle v. Atlantic Coast Line R. Co.

• Decision Date: 02 July 1943
• Citation: 153 Fla. 258,14 So.2d 422
• Parties: COLLE v. ATLANTIC COAST LINE R. CO. et al. BELGIAN AZALEAS, Inc., v. SAME.
• Court: Florida Supreme Court

14 So.2d 422

153 Fla. 258

COLLE v. ATLANTIC COAST LINE R. CO. et al.

BELGIAN AZALEAS, Inc., v. SAME.

Florida Supreme Court

July 2, 1943

Rehearing Denied July 24, 1943.

Appeal from Circuit Court, Seminole County; M. B. Smith judge.

Garland W Spencer, of Sanford, and Herschel O. Moats, of Orlando, for appellants.

Leroy B Giles and W. B. Parks, both of Orlando, for appellees.

THOMAS, Justice.

The actions of Jules J. Colle and Belgian Azaleas, Inc., a corporation, were based upon the same set of facts, consequently they were consolidated and tried as one. No distinction appearing in the record except in the ownership of the property, for the destruction of which the plaintiffs sought damages, we will, in our discussion, deal with the question involved as if a single suit had been instituted.

It was charged in the declaration that the defendant, Atlantic Coast Line Railroad Company, operated trains on a track maintained by it in Seminole County, near Casselberry, Florida, and that on a specified day 'the defendants carelessly and negligently communicated fire [to the property of the plaintiffs] by and from a certain locomotive engine, which * * * was then and there operated by the defendants upon said railroad track of the defendant, Atlantic Coast Line Railroad Company * * *.' As will be noted from the italics which we have inserted the plural was used however there was special reference only to the railroad company. Although the name of the defendant C. C. Fisk appears in the introductory paragraph of the declaration there was no description of him in that pleading. In the bill of particulars the plaintiffs represented that their property was destroyed because live embers, allowed to emit from the engine of a train operated by the defendant, 'Atlantic Coast Line Railroad Company, and C. C. Fisk as the engineer in charge of said train,' settled upon the property and set it afire.

The cases were tried upon declaration and plea of not guilty.

The plaintiffs introduced testimony showing that their property was situated about one hundred and twenty feet from the railroad track. On it they grew flowers under a shelter composed of lath and covered with 'tobacco cloth.' At the time the train of the defendant railroad company passed a wind of considerable velocity was blowing from the direction of track towards the plaintiffs' property and as it passed 'a large volume of smoke with particles of hard dust and little cinders' blew over the shed. Within two minutes the tobacco cloth was aflame. This story was related by the plaintiff Colle and a laborer who was working on the place at the time. Colle and his assistant immediately attempted to extinguish the fire with a small hose, the only apparatus available. He tried to summon aid, but could not reach the telephone because a shed, where it was located, was afire also. A neighbor discovered his plight and called the fire department of a nearby town. Property, valued at several thousand dollars, was destroyed.

The plaintiffs introduced as a witness the chief clerk to the superintendent of the Jacksonville district of the railroad company who stated that the train was a 'double-header,' ---- one engine was driven by the defendant C. C. Fisk and the other by one J. R. Lyles ---- and that both locomotives were 'coal-burners.'

Whether the plaintiffs first learned from their own witness during the trial of the cause about the presence of another engineer does not appear; at any rate, no effort whatever was made to remedy the situation and at the conclusion of all their testimony the judge granted the motion of the defendants for an instructed verdict. The record discloses his view 'that the evidence fails to carry the burden cast upon the plaintiffs of establishing the actual setting of the fire by the railroad company, or any of its agents * * *.'

Thus, giving the observation of the trial judge a literal construction it would seem that the question for our determination is quite simple, but it is complicated because of the distinction between the rules of evidence which should be applied to the corporation, railroad company, and the individual, engineer. Obviously, it would have been impossible for the jury to decide which engine emitted the sparks causing the damage. In this circumstance the trial judge was thoroughly warranted in instructing the jury to find the engineer Fisk not guilty. So far as the defendantrailroad company was concerned, it was plaintiffs' task to establish in the first instance that they had suffered injury directly caused by the operation of the company's locomotive. Payne v. McKinnon, 81 Fla. 583, 88 So. 495. This could have been established by circumstantial evidence, Jacksonville, T. & K.W.Ry.Co. v. Peninsular Land, etc., Co., 27 Fla. 1, 157, 9 So. 661, 17 L.R.A. 33, 65, although no conjecture could have been indulged in favor of the plaintiffs in their effort to prove that the fire was translated from the locomotive to the property. Seaboard Air Line Ry. v. Minor, 82 Fla. 492, 90 So. 611. If the evidence showed or tended to show that the fire was actually caused by sparks from the locomotive, a presumption of negligence on the part of the railroad company then arose under the statute (Section 7051, C.G.L., 1927, F.S.A. § 768.05) and the burden of establishing the exercise of reasonable care and diligence on the part of the company shifted to the defendants. Atlanta & St.A.B.R.Co. v. Welch, 85 Fla. 203, 95 So. 570.

Even though we have the view that the plaintiffs did not prove negligence on the part of the individual engineer we believe that their evidence did show or tend to show that the fire causing the damage was set by sparks from the engine or engines of the defendant-railroad company's train. Moreover, as has been repeatedly held by this court each of the defendants by the motion for directed verdict admitted all facts stated in evidence and reasonable conclusions and inferences therefrom favorable to the plaintiffs. Wager v. East Coast Hospital Ass'n et al., 105 Fla. 547, 141 So. 743; Merchants' Transp. Co. v. Daniel, 109 Fla. 496 149 So. 401. It is true that no one actually saw sparks leave the engines; saw them land upon the shed; or saw them fanned into...