Drake v. Yazoo & Mississippi Valley Railroad Co

• Decision Date: 22 April 1901
• Citation: 79 Miss. 84,29 So. 788
• Parties: NETTA DRAKE v. YAZOO & MISSISSIPPI VALLEY RAILROAD CO
• Court: Mississippi Supreme Court

29 So. 788

79 Miss. 84

NETTA DRAKE v. YAZOO & MISSISSIPPI VALLEY RAILROAD CO

Supreme Court of Mississippi

April 22, 1901

March 1901

FROM the circuit court of, first district, Hinds county. HON ROBERT POWELL, Judge.

Mrs Drake, appellant, was the plaintiff in the court below; the railroad company, appellee, was defendant there. The suit was for damages resulting from fire alleged to have been started by sparks escaping from defendant's locomotive. The state of the evidence is sufficiently apparent from the opinion of the court. The first instruction for defendant, condemned by the opinion, was as follows: "Although the jury may believe from the evidence that the fire in question was caused by the running of defendant's train, yet if they further believe from the evidence that the engine was in good order and was handled properly and with due care and skill at the time the fire got out, they must find for defendant."

From a judgment in favor of defendant the plaintiff appealed to the supreme court.

Reversed and remanded.

Wells & Wells, for appellant. ^[*]

The appellant owns a plantation immediately adjoining and west of the city of Jackson, through which defendant's line of railway runs. On November 23, 1899, the incoming passenger train set fire to the grass on appellant's land, which burned over about sixty acres of pasture land, about fifteen acres of meadow, burnt about sixty posts of a wire fence, burnt also a stack of hay consisting of four or five tons, destroyed fifteen pear trees and about as many apple trees, all of the trees being about twelve years old, for which appellant brought suit and the jury found for the defendant. Plaintiff appeals and the case comes to this court in this shape: McNeill, the section boss of and a witness for the defendant, testified that the fire which burned off plaintiff's land and destroyed her property was set out by engine No. 10, belonging to the defendant and which pulled into Jackson the passenger train on November 23, 1899, at about 12:30 o'clock P.M. of that day. By this admission of defendant's witness, the burden of proof was placed on defendant to overthrow the prima facie case thus made against it and to show that it was in nowise negligent in setting out the fire. 13 Am. & Eng. Enc. of Law, 504, thus lays down the rule: "For the purpose of rebutting the presumption the evidence must be as broad as the presumption itself, and must satisfactorily rebut every negligent act or omission which might under the circumstances of the case reasonably or naturally have caused the fire."

The same work (504 and 505) has the following to say in regard to the construction, condition and control of an engine: "The general rule on this subject is that if the defendant shows that the engine alleged to have caused the fire was of proper construction, and equipped with approved devices and appliances to prevent the escape of fire and sparks, was in good repair and prudently managed and controlled, the prima facie presumption arising from the mere communication of fire will be rebutted. The presumption of negligence from the escape of fire, however, cannot be rebutted by merely showing that the machines and appliances were of proper character and were at the time in good condition without further showing that due care was employed to avoid such injuries; to accomplish which it should be shown not only that the engine was in charge of competent and skillful servants but also at the particular time and under the circumstances in question it was carefully managed and controlled."

With this statement of the law as a starting a point, we propose to discuss the evidence with regard to each of the three points, broadly speaking, which are necessary to be proven. We lay down these three points as follows:

1. That proper, or best, or best and most approved or most effectual (or whatever the standard may be laid down in this court) appliances were used on engine No. 10 for the prevention of the escape of fire, such appliances being called spark arresters and fire pans.

2. That the appliances which were on engine No. 10 for the prevention of the escape of fire were in good order at the time of the admitted escape of fire from said engine onto the lands of plaintiff.

3. That the engineer and fireman on engine No. 10 at the time of the setting out of the fire were skillful and competent workmen and further, that at the time of the escape of the fire from said engine on the day and at the place in question these skillful and competent workmen were exercising due care and diligence.

Now we contend that each and every one of these three contentions must have been proved to the jury; and that proof by the defendant that it has fulfilled all of these three requirements with the exception of any one of them will in nowise excuse negligence in that respect, or failure to prove want of negligence in that one respect.

That the above points are laid down as the law in Mississippi cannot be doubted after an examination of the following cases: Home Insurance Co. v. Railroad Co. (Spengler case), 70 Miss. 119; Tribette v. Railroad Co., 71 Miss. 212.

Let us now examine in detail the evidence in the case to see if it shows that the spark arrester on engine No. 10 came up to the standard required to be used in this state, evidence of the use of which being necessary to overthrow the presumption of negligence raised by its permitting sparks to escape from the engine and burn up the property of the appellant.

In the case of Louisville, etc., Ry. v. Natchez, etc., R. R. Co., 67 Miss. 399, it is held that the "company must secure against the escape of fire by the use of known appliances and safeguards."

Home Insurance Company v. Railway Co., 70 Miss. 119, approves an instruction that a certain engine under discussion must be provided with all the necessary and proper appliances to prevent the escape of fire." etc.

Only two men in the case at bar testified in regard to the spark arrester on engine No. 10, to wit, Williams, a machinist in the employ of the defendant and Steinspring who testified that he was the engineer who was running the engine on the occasion of the setting on fire of plaintiff's property, but whose statement is absolutely negatived by the record offered in evidence by defendant. Neither of these men testified as to what sort of a spark arrester it was. Every question addressed to them by counsel is directed toward finding out whether or not the spark arrester which was on the engine was in good repair. Neither testified that it was the spark arrester in general use either on the line of the defendant railroad or on any other line. Not a word as to whether it was a good kind or poor kind, improved or old fashioned, standard or what not. In fact no pretense was made toward inquiry as to the kind of spark arrester used on the engine in question. All the evidence elicited by counsel as to the kind of spark arrester is gotten in answers (we repeat) to questions as to the state of repair of the spark arrester on said engine No. 10; and it is our contention that viewing these questions in the proper light, nowhere is it shown except by remote inference and conjecture what kind of spark arrester was in the engine.

The only answer of either of the two men which can possibly be construed to mean that the engine was equipped with a proper spark arrester is the following: "Q. Did she throw fire on that day? A. She does not throw fire any worse than any other engine." The court will notice that the answer is a dodge of counsel's question and in ambiguous terms witness throws out the answer, "She does not throw fire any worse than any other engine." But again we do not know that the same spark arrester is on engine No. 10 now, that was on it then, so that what the engine does now with its present equipment is immaterial. It is what the engine had in the way of equipment at the time of the setting out of the fire that concerns us. The very next question put by the counsel is as to the state of repair of the engine, so that if we had been on road to recovery of information in regard to the kind of spark arrester, we are now taken in another direction and do not get the information. There is absolutely no proof as to the kind of spark arrester on the engine on the day and at the place in question, except by pure inference or conjecture.

The 13 Am. & Eng. Enc. of Law (2nd Edition), 472, lays it down as the law in the following states that the "most approved mechanical inventions" to prevent an escape of fire must be used; viz.: Arkansas, Florida, Illinois, Indiana, Iowa Michigan, Minnesota, Nevada, New Jersey, New York, North Carolina, Pennsylvania, Tennessee, Texas, Virginia and Wisconsin. In our own state the rule has not been laid down that absolutely the best in general use must be used. But we certainly have some standard which must be the degree of efficiency to which the spark arrester must attain. Is the simple statement that there was a spark arrester on an engine and that when it was in repair it would not throw big sparks, with the admission that it did on the day in question throw sparks which were capable of setting fire to grass along the side of the railroad, to be said to measure even up to the standard in Mississippi, with the burden of proof on the railroad to show that it was the proper spark arrester? If this is the law, then the railroad need only prove that they had a spark arrester which had netting and would stop some of the sparks without any more explanation as to make, standing, etc., (to overthrow a prima facie case) and the law requiring information to be given by the party which has the power to give it is a nullity. Surely, then, our standard is higher than that...