Deason v. Alabama Great Southern R. Co.

• Decision Date: 22 April 1914
• Docket Number: 619
• Citation: 186 Ala. 100,65 So. 172
• Parties: DEASON v. ALABAMA GREAT SOUTHERN R. CO.
• Court: Alabama Supreme Court

65 So. 172

186 Ala. 100

DEASON v. ALABAMA GREAT SOUTHERN R. CO.

No. 619

Supreme Court of Alabama

April 22, 1914

Appeal from Tuscaloosa County Court; H.B. Foster, Judge.

Action by T.S. Deason against the Alabama Great Southern Railroad Company for damages for setting out fire. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

The residence premises of plaintiff was destroyed by fire alleged to have been caused by sparks emitted from one of defendant's passing locomotives. Defendant introduced no evidence, and the evidence for plaintiff showed the following facts: Plaintiff's house was situated about 125 feet distant from the defendant's main track. It was a two-story frame house, with two rooms above and two below with a one-story L addition, embracing the dining room and kitchen, and a porch covered with rotten shingles ran with the L in the rear of the house. Where the porch joined the building, there was an accumulation of dead leaves from a nearby tree, which had lodged in the valley. The house faced the railroad on the north, and the L porch was on the south side, away from the railroad, and about 10 feet lower than the main building. The fire was discovered by the inmates of the house about 1 a.m., and all of them testified that the fire was then burning on the roof of the back porch where the leaves were accumulated, and that it spread from this point. There had been no fire in the house or dining room or kitchen since 11 a.m. of the previous day, except the oil lamps lit by the inmates for a short time when retiring, and which were all extinguished at that time. The season was October; the weather was very warm and dry. Previous to the fire, at a time of night not estimated, one of the inmates was awakened by a train going north. Oscar Frank testified that he had been possum hunting that night, and, returning, passed within about 300 yards of plaintiff's house. At that time he saw a train going north pulling very hard and about to stall. While passing along in front of the house, the engine was emitting sparks--a whole lot of them--some as large as the end of one's finger, and the train pulled in and stopped on the side track. He said he had no timepiece, but that his best judgment, as near as he could come at it, was that this was between 10 and 11 o'clock. Plaintiff's counsel asked this witness what time of the day he left home. Defendant objected to this question as incompetent and immaterial, and the objection was sustained. M.M. White, who lived near the station, about a quarter of a mile from plaintiff, and about 150 yards from the railroad track, was awakened before the fire occurred about 12 o'clock, as he estimated it without a timepiece, by a passing train of cars pulling heavily. He went to the fire, and while there saw a train standing on the track. Other witnesses also saw a train at that time, and some testified that it pulled away towards the north while the fire was in progress. Sid Quarles, who lived some several hundred yards away from plaintiff, and near the railroad track, testified that he had previous to this fire noticed trains at night moving upgrade near plaintiff's house, with the engines emitting large sparks, and that shortly before plaintiff's fire he had on several occasions seen freight trains pulling up the heavy grade there, emitting large sparks, which fired the grass along there in his orchard. Several witnesses testified that on the night of the fire, or while the fire was burning, the wind was blowing from the railroad towards the house plaintiff testifying that it was a strong wind, blowing hard and blowing from the railroad towards the house. At the conclusion of the evidence, the court directed a verdict for defendant at its request.

Oliver Verner & Rice and James Rice, all of Tuscaloosa, for appellant.

A.G. & E.D. Smith, of Birmingham, for appellee.

SOMERVILLE J.

Where the plaintiff has shown that his property was burned by fire caused by sparks from a locomotive operated by the defendant railroad company, a prima facie case of negligence is thereby established, and the plaintiff may recover, unless the defendant shows itself free from negligence in the construction, equipment, or operation of its locomotive, or in the condition of its right of way, if the fire is first started there. L. & N.R.R. Co. v. Reese, 85 Ala 497, 5 So. 283, 7 Am.St.Rep. 66; Louisville & N.R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 So. 438, 50 L.R.A. 620; Id., 132 Ala. 520, 32 So. 745, 90 Am.St.Rep. 917; So. Ry. Co. v. Darwin, 156 Ala. 311, 47...