Durrett v. Mississippian Ry. Co

• Decision Date: 28 January 1935
• Docket Number: 31538
• Citation: 171 Miss. 899,158 So. 776
• Court: Mississippi Supreme Court
• Parties: DURRETT v. MISSISSIPPIAN RY. CO

158 So. 776

171 Miss. 899

DURRETT v. MISSISSIPPIAN RY. CO

No. 31538

Supreme Court of Mississippi

January 28, 1935

Division B

Suggestion Of Error Overruled March 11, 1935.

APPEAL from the circuit court of Monroe county HON. THOS. H JOHNSTON, Judge.

Action by B. C. Durrett against the Mississippian Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Leftwich & Tubb, of Aberdeen, for appellant.

In a proceeding under either statute, section 3422 or section 6153, Code of 1930, if the proof discloses that the fire originated in or upon the roadbed or right-of-way, that shortly before a locomotive had passed along and soon thereafter the fire sprang up in or upon the roadbed or right-of-way, and that no fire was seen nearby at any time shortly before, then a strong presumption arises that the fire was communicated from the defendant's locomotive engine or train of cars; a prima facie case is thus made which will justify the court and the jury in drawing the conclusion that the fire originated or was communicated by the defendant's locomotive engine or train of cars and that under this proof the plaintiff is entitled to recover.

L. N. O. & T. Ry. Co. v. N. J. & G. R. R. Co., 67 Miss. 399; Tribbette v. I. C. R. R. Co., 71 Miss. 212; A. & V. R. R. Co. v. Barrett, 78 Miss. 432; I. C. R. R. Co. v. Thomas, 68 So. 773, 109 Miss. 536; Y. & M. V. R. R. Co. v. Washington et al., 73 So. 879, 113 Miss. 105; Folsom v. I. C. R. R. Co., 77 So. 604, 116 Miss. 561; Liverpool, London & Globe Ins. Co. v. Kosciusko & S.E. R. Co., 83 So. 305, 121 Miss. 258.

The defendant railway was grossly negligent in permitting highly combustible matter to accumulate on its right-of-way.

51 C. J. 1159-61, secs. 1271-72; Tribbette v. R. R. Co., 71 Miss. 235; Central of Ga. Ry. Co. v. Graves (Ala.), 107 So. 716; 51 C. J., sec. 1271.

The granting of charge number six was a most flagrant reversible error. This instruction is as follows: "The court further instructs the jury for the defendant, that if, after consideration of all the evidence in the case the evidence for the plaintiff and the defendant is evenly balanced or if you are uncertain or in doubt from the evidence in the case how the fire was set out and who set out the fire which was communicated to the lands of the plaintiff, then in either event it is your sworn duty to return a verdict for the defendant."

This charge has been repeatedly condemned by this court.

Gentry v. Gulf & Ship Island R. Co., 109 Miss. 66; Stevenson v. Yazoo & M. V. R. Co., 112 Miss. 899; Mardis v. Yazoo & M. V. R. Co., 115 Miss. 734.

I. L. Sheffield, of Fulton, for appellee.

As to fires all along the railroad the superintendent testified that they had no such fires and fires at other times and by other engines under other management are not admissible.

Tribbette v. Illinois Central Railway Co., 13 So. 899; Alabama & V. Ry. Co. v. Aetna Ins. Co., 35 So. 304.

One isolated instruction might appear to be erroneous but this court has repeatedly held that the instructions as a whole are to be considered and if as a whole they announce the law properly then no error is done.

Instruction number six when considered with all of the other instructions merely announces to the jury that having before them all of the evidence in the case unless they are convinced that the fire was set out by the defendant that they can not return a verdict against it. Read alone, it might seem to announce a rule not applicable and one which alone would probably be condemned but in connection even with instruction number five, it announces the law clearly and plainly.

OPINION

Griffith, J.

Appellant plaintiff in the trial court, brought an action against appellee railway company charging that a locomotive of the defendant set out a fire which was communicated to the lands of appellant to the great damage of the timber thereon. The case in behalf of the plaintiff was made out by circumstantial evidence, as is usual in such cases, and the evidence was sufficient to sustain a verdict in plaintiff's favor had the jury so decided. The circumstances relied on by plaintiff were sharply controverted by the proof introduced by the defendant, and therefore ...