Douglass v. Central of Georgia Ry. Co.

• Decision Date: 24 May 1917
• Docket Number: 5 Div. 621
• Parties: DOUGLASS v. CENTRAL OF GEORGIA RY. CO.
• Court: Alabama Supreme Court

78 So. 457

201 Ala. 395

DOUGLASS v. CENTRAL OF GEORGIA RY. CO.

5 Div. 621

Supreme Court of Alabama

May 24, 1917

On Rehearing, March 23, 1918

On Rehearing.

Appeal from Circuit Court, Tallapoosa County; S.L. Brewer, Judge.

Action by F.M. Douglass against the Central of Georgia Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Mayfield and Sayre, JJ., dissenting.

J.W Strother and J.W. Nolan, both of Dadeville, for appellant.

Barnes & Brewer, of Opelika, for appellee.

MAYFIELD J.

The action is to recover damages of a railroad company, on account of the destruction of plaintiff's property machine shops, etc. It is alleged that the fire was communicated to plaintiff's property from one of the defendant's locomotive engines. The negligence relied upon for a recovery, as alleged was in the construction equipment, or operation of defendant's locomotive. The case was tried on the general issue. The trial resulted in verdict and judgment for the defendant, and from the judgment plaintiff appeals.

In action like this, where the only claim is that a certain engine set out the fire, it is not competent for the plaintiff to prove that other engines or other locomotives of the defendant, at other times, had communicated fire to property, along its right of way, situated as was the property alleged to have been burned, or to even the same property, unless it is first shown that the equipment management, and other conditions were similar on the two occasions. The case of Louisville & Nashville Railroad Co. v. Malone, 109 Ala. 509, 20 So. 33, does not decide the contrary. The evidence of other fires, in that case, was held admissible because the defendant itself first offered proof as to the equipment of all its engines, and expert evidence to the effect that it was impossible for an engine, equipped as were defendant's engines, to communicate fire, as it was alleged to have been communicated in the case on trial, and that plaintiff could then rebut this by proof that such equipment did allow fires to be communicated by such engines when passing houses located as was his house that was injured. It was there said that but for the defendant's evidence the plaintiff's would not have been admissible. That case has been frequently followed in this respect. Southern Railway Co. v. Stonewall Ins. Co., 177 Ala. 334, 335, 58 So. 313, Ann.Cas.1915A, 987, which collects the authorities.

It is insisted that the trial court erred in allowing defendant's engineer to testify as to whether or not he handled the engine carefully and prudently. This question is not properly raised or presented. It appears that the court, on plaintiff's motion, excluded answers of the witness which were expressions of opinion on this subject, and that thereafter other questions were propounded to the witness without objection, and were answered without objection, though the answers were similar in legal effect to the one excluded. The plaintiff therefore waived or lost his right to insist upon the admission of such evidence as error, if such it was. We do not hold that there was error, but merely that, if there was error, it was waived by plaintiff.

Counsel for plaintiff are in error in supposing that the trial court declined to allow plaintiff to prove the speed of the train alleged to have set out the fire. This proof was repeatedly offered by plaintiff and allowed by the court, and not only proof of the speed of the train at the place of the fire, but proof of its speed a half mile away.

There was no error in declining to allow the plaintiff to introduce an ordinance of the town in which the property was situated, fixing the speed at which trains should move within the corporate limits. There was no allegation that the injury complained of proximately resulted from a violation of such ordinance, nor was there any allegation that the train was being operated in a wanton or willful manner, which proximately resulted in the injury complained of. Without some such allegation or issue, we do not see how this ordinance was admissible. While we have some cases holding that similar ordinances were admissible in damage cases, yet in each the violation of the ordinance was in some manner made an issue in the case. To make the ordinance admissible, it should have been pleaded or otherwise shown that its violation proximately contributed to the injury. There was nothing in this case to apprise the defendant that it would be required to defend against a violation of this ordinance. In other words, it is not shown that it was error to decline to allow plaintiff to prove a violation of it.

There was no error in declining to allow plaintiff to prove that he allowed combustible matter to accumulate in or near his building, which was exposed to sparks from passing engines. A party could thus contribute to his own injury, and then fix liability on another therefor. It was not even shown that the defendant was chargeable with notice of the presence of such combustible matter, much less that it or its train operatives had actual notice thereof.

There was likewise no error in declining to allow plaintiff's witnesses to state their opinions as to the cause of the fire; this was one of the very issues which the jury only could find from all the evidence.

There was no error in allowing defendant to offer proof to show that the building burned was left open and unattended, and was used by other people than the owner, and as a playground or playhouse for children. This was a circumstance, however slight, going to show that the fire in question was caused by other persons or agencies than defendant or its locomotive. It was necessary to show that it was being so used at the very time of the fire.

The trial court, at the request of the defendant, charged the jury that, unless they were reasonably satisfied that the fire was caused by sparks emitted from defendant's locomotive, they should find for defendant. There was no error in giving this instruction. There was not even a claim of liability of the defendant, unless the fire in question was so caused by the defendant. Without such a finding, there could be no shadow or color of liability, as shown by the pleadings or by the proof.

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