Dowling Lumber Co. v. King

• Decision Date: 13 December 1911
• Citation: 57 So. 337,62 Fla. 151
• Parties: DOWLING LUMBER CO. v. KING.
• Court: Florida Supreme Court

57 So. 337

62 Fla. 151

DOWLING LUMBER CO. v. KING.

Florida Supreme Court, Division B.

December 13, 1911

Headnotes Filed February 12, 1912.

Error to Circuit Court, Taylor County; L. W. Blanton, Referee.

Action by J. L. King against the Dowling Lumber Company. At the death of plaintiff, Martha S. King, administratrix, was substituted as plaintiff. From a judgment for plaintiff Defendant brings error. Affirmed on condition.

Syllabus by the Court

SYLLABUS

In an action by an administratrix for damages alleged to have been caused by fire negligently set out upon the premises of the decedent by the engine of a corporation operating a tramroad no error is committed by the trial judge in refusing to permit a letter written by the decedent to be introduced in evidence in which he stated that the fire was set out by train No. 58, when it is not alleged in the declaration that the fire was set out by a train so numbered, and especially when the purpose of the letter was to confine the evidence on the part of the plaintiff to the condition of an engine numbered 58, its spark arrester and ash pan.

When fence rails, trees, etc., destroyed by fire had no market value in the neighborhood where they were destroyed, all pertinent facts and circumstances tending to establish the real and ordinary value of the property at the time of its destruction are admissible in evidence.

Where it is apparent that damage would result to the adjacent property of others in the event of a fire started along a railway company's abutting roadbed, it is the duty of the company to render the chance of the escape of fire from its engines less hazardous by keeping its roadbed and right of way clear of fire-breeding and combustible material.

Where the evidence is conflicting, the judgment of a referee upon the liability of the defendant will not be disturbed.

Gross negligence, not amounting to such wanton and reckless indifference to the rights of others as to be equivalent to an intentional violation of them, will not warrant punitive damages.

COUNSEL McCollum & Harrell, for plaintiff in error.

Hendry & McKinnon, for defendant in error

OPINION

HOCKER, J.

J. L King sued the Dowling Lumber Company, a corporation, in the circuit court of Taylor county, to recover damages to the lands and farm of plaintiff alleged to have been caused by fire communicated from a certain locomotive operated on a tramroad through the farm of the plaintiff. It is alleged that weeds, grass, and débris had been carelessly and negligently allowed to accumulate on the track and right of way, and that the engine was not properly equipped with spark arresters and a good and sufficient ash pan that would prevent throwing out sparks, coals of fire, etc., and carelessly and negligently allowed coals of fire to drop from the ash pans, and sparks of fire to be emitted from the smoke stack, which fell in the dry grass and débris and ignited the same, causing a fire which destroyed 361 panels of fence of the value of $141, three gates of the value of $15, burnt over land on which were trees and timber, damaged and destroyed 75 trees of the value of $75, left the farm open and unprotected against cattle causing unusual labor and inconvenience. It is alleged 'that the defendant by and through its servants, agents, and employés then and there well knew of the said fire which so destroyed plaintiff's property; that they were then and there present, and saw the said fire as it was raging, but the defendant then and there carelessly, negligently, and wantonly failed, neglected, and refused to aid the plaintiff in extinguishing said fire which if such assistance had been rendered, the great damage which was sustained would have been to a great extent avoided.' The foregoing contains the substance of the four counts of the declaration.

Pleas of not guilty were filed to the several counts. The plaintiff having died, his administratrix was without objection made party plaintiff in the suit. The cause was then referred to a referee for trial. The referee made the following findings:

'This cause being submitted for final hearing upon the evidence adduced by the parties hereto before the undersigned referee, the referee finds as follows: That the defendant allowed grass, weeds, stubble, trash, and débris to accumulate on its roadbed and right of way running through plaintiff's farm and to remain thereon for several months--the roadbed not having been cleaned off and cleared of such grass, weeds, stubble, and débris for more than 12 months prior to the alleged fire--and that in so doing the defendant was then and there grossly negligent; that on or about the 17th day of January, 1910, one of the defendant's locomotives, then and there passing along and over said roadbed through plaintiff's farm, was not equipped with proper ash pan and spark arrester and that by reason of said defective equipment emitted and dropped sparks and coals of fire on and along said roadbed and right of way and from which said coals of fire and sparks the grass, weeds, stubble, and débris on and along said roadbed and right of way were ignited and therefrom fire spread out over and through plaintiff's farm, and then and there burned and consumed a quantity, to wit, 361 panels of 10 rails each, of plaintiff's fence, also burned over plaintiff's woodland and burned and destroyed plaintiff's timber; that said fire was observed by defendant's employés and that they neglected to render any aid in extinguishing the same, and that the plaintiff used his best efforts to extinguish the fire and to avoid the damage. And the referee finds the actual damage sustained by the plaintiff by reason of defendant's negligence, as alleged and proved, to be $166.51, and that by reason of defendant's gross negligence as found, the additional sum of $7 5 should be assessed against it as punitive or compensatory damages.

'Therefore the referee finds for the plaintiff and assesses her damages at two hundred forty-one dollars and fifty-one cents ($241.51), with interest from day of filing suit. This March 22, 1911.'

Judgment was entered in accordance with the findings. This judgment is here for review on writ of error.

The evidence shows that the Dowling Lumber Company operated a log railroad through the farm of the defendant in error; that said farm consisted of several hundred acres, and was fenced with a rail fence; that the track and right of way on the 17th of January, 1910, at the time of the fire, was covered with dry weeds and grass, and had been in that condition for some time; that fires had occurred on the track and right of way several times before and after the said date, some of them having occurred immediately after the passing of the locomotives of the plaintiff in error. The evidence on the part of the defendant in error tends to show that on the morning of the day in question, possibly about 11 o'clock, about half an hour after the passing of a locomotive and cars through the farm of defendant in error, a fire was seen on or near the track on said farm not far from the fence which inclosed it; that no fire was seen there before the...