Evins v. St. Louis & San Francisco Railroad Co.

• Decision Date: 06 May 1912
• Parties: EVINS v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY
• Court: Arkansas Supreme Court

147 S.W. 452

104 Ark. 79

EVINS v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY

Supreme Court of Arkansas

May 6, 1912

Appeal from Washington Circuit Court; J. S. Maples, Judge; reversed.

Judgment reversed, and cause remanded.

E. B Wall, for appellant.

1. The demurrer should have been sustained. The act under which this suit was brought imposes an absolute liability for the destruction of property by fire, and is constitutional. 89 Ark. 418; 165 U.S. 1; 121 Mo. 298; Id. 340; 12 Col 294; 62 Conn. 340; 16 Gray (Mass.) 71; 145 Mass. 129; 46 Me 95; 25 L. R. A. 161, 162. And contributory negligence is not a defense. 2 Col. App. 42; 2 Id. 169; 3 Elliott on Railroads, § 1223, and authorities cited.

2. Instruction 6 given by the court assumes conclusions of fact, invades the province of the jury, and points out inferences to be drawn from particular facts in evidence. 49 Ark. 439; 37 Ark. 592; 43 Ark. 289; 45 Ark. 165; Id. 492; Wharton on Negligence, §§ 73, 134.

W. F. Evans and B. R. Davidson, for appellee.

1. Since the only instruction given on contributory negligence was at the request of appellant, he can not now be heard to object that the jury may have decided the case upon the theory that he was guilty of contributory negligence. However, the instruction as to contributory negligence was correct. 126 S.W. 1003; 38 Ark. 357, 369; 49 Ark. 535; Wharton on Neg., 301; 42 Ill. 355.

If Evins was guilty of contributory negligence, he could not assign a greater right than he already possessed, the railroad company having no insurable interest in the property. 93 Wis. 496; 94 Ill. 448; 104 Ill.App. 499; 135 Pa. 50; 71 Kan. 79; 93 Wis. 496.

2. The instruction as to causal connection being broken is correct. 12 L. R. A. (N. S.) 528, note; Pierce on Railroads, § 444; Wharton on Neg., (2 ed.), §§ 866, 867-B; 43 Am. & Eng. R. R. Cas. 57.

OPINION

FRAUENTHAL, J.

This is an action to recover damages for the destruction of a barn by fire, alleged to have originated from a locomotive engine of defendant upon its line of railroad. J. T. Evins was the owner of the barn, and had obtained a policy from the Citizens' Insurance Company insuring it against loss by fire. In said policy it was provided that said insurance company, upon payment of the loss, should be subrogated to all rights of the owner against any wrongdoer through whose wilful or negligent act the loss to the property occurred. It was alleged that the barn was destroyed by fire caused by sparks emitted from a locomotive on one of defendant's freight trains. In pursuance of the provision of said policy, Evins assigned to the insurance company all claim and right of action which he had against defendant by reason of the destruction of his barn by said fire; and this suit was instituted by both the owner and the insurance company as parties plaintiff.

The defendant filed an answer containing two paragraphs. In the first paragraph it denied that the fire which destroyed the barn was caused by sparks emitted from its locomotive; in the second paragraph it pleaded "that said Evins and his family in charge of the barn were guilty of negligence which caused or contributed to cause the alleged injury." The plaintiff thereupon demurred to said second paragraph of the answer upon the ground that it did not state facts sufficient to constitute a defense, and because defendant was estopped by law from pleading contributory negligence as a defense. The demurrer was overruled, and to this action the plaintiffs properly saved their exception. The plaintiffs then went to trial, which resulted in a verdict in favor of defendant.

The barn was situated from 250 to 300 yards from the defendant's railroad track, and was destroyed by fire on December 25, 1908, about thirty minutes after one of defendant's freight trains passed at this place. The testimony on the part of the plaintiffs tended to prove that, immediately after the train had passed, the grass and undergrowth either upon the right-of-way or next to it was seen to be on fire. A strong wind was blowing towards the barn, and the fire spread in the grass and undergrowth in that direction. From the facts and circumstances adduced upon the trial on the part of plaintiffs, we are of the opinion that there was sufficient evidence to warrant a finding that the fire was started by the defendant's engine and spread to the barn. On the other hand, there was testimony adduced upon the part of the defendant tending to prove that the fire did not originate from the defendant's engine, but was burning in the grass and undergrowth as the train approached this place, and that it originated from the guns of persons hunting in the adjoining woods.

The testimony on the part of the defendant tended further to prove that the barn was situated upon the east side of the railroad track, and the dwelling of Mr. Evins on the west side about one-half mile from the barn. At the time the barn was burned, Mr. Evins was away from his home, and left the premises in charge of his wife and family, consisting, amongst others, of a son about twenty-one years old. From their dwelling, the members of the family discovered the fire in the grass about fifty or one hundred yards from the barn, and the son went immediately and endeavored to put the fire out. He whipped out the flames, and, believing that he had extinguished the fire, he returned to his home. At that time, the end of the fire line was seventy to one hundred and twenty-five feet from the barn. Between the fire line and the barn there was dry grass and leaves, and when he left there was fire in some stumps and dead limbs which the fire had passed over. Shortly after he left, his attention was called to the fact that the barn had caught on fire, and he at once returned to the barn, but was unable to extinguish the fire. It is contended that the son was guilty of negligence in leaving the fire in the stumps and dry limbs, and in failing to then entirely extinguish it; and that the destruction of the barn was due to this negligence, attributable to the owner, which relieved the defendant of all liability, even though it set out the fire originally.

At the request of plaintiffs, the court gave an instruction stating that the burden was on the defendant to prove contributory negligence upon the part of the plaintiffs as alleged by defendant. Upon its own motion, the court gave the following instruction without any objection made thereto by plaintiffs: "6. The court instructs you that it was the duty of the plaintiffs or those in charge of the property, when the danger was discovered by them, to put out the fire if possible; and if the jury believe that the fire could have been put out and the barn saved by the exercise of ordinary care and diligence upon the part of the plaintiff Evins, or those in charge of the property, you will find for the defendant." At the request of the defendant an instruction was also given relative to the issue of contributory negligence, to which the plaintiffs properly made objection and saved exception to the adverse ruling thereon.

Upon the issue as to whether or not the fire which caused the destruction of the barn was originated by sparks emitted from defendant's engine, we are of the opinion that there was testimony adduced by the respective parties sufficient to warrant a finding in favor of their respective contentions; and that, under the facts and circumstances of the case, it was peculiarly the province of the jury to determine this question of fact. Upon this issue we find that the instructions of the court were free from error.

The sole question for determination, then, is whether or not the court erred in overruling plaintiff's demurrer to the paragraph of the answer setting up the plea of contributory negligence, and in giving the instructions upon the issue presented by that plea. It is urged by counsel for defendant that no error, if any, made in the instruction given by the court of its own motion relative to this issue is subject to review upon this appeal, for the reason that the plaintiffs made no objection and preserved no exception thereto. It is also contended that the plaintiffs waived any error made by the court in overruling the demurrer to the plea of contributory negligence, and in any instructions given upon the request of the defendant on that issue, because the plaintiffs, after their demurrer had been overruled, went to trial and themselves asked and obtained an instruction upon that issue.

Ordinarily it is universally held that the failure to object to an instruction operates as a waiver of any error that may be committed in giving it. Likewise, upon the doctrine of invited error, one party can not complain of an alleged erroneous instruction given if he himself has asked an instruction containing the same error. But the reason why it is necessary that an objection should be made to an instruction given by a trial court is to call to its attention the error complained of, so that the trial court may have the opportunity to then correct it. If the error complained of has by proper objection been presented to the trial court for its rulings thereon, and if exception has been duly saved to an adverse ruling, then this is sufficient to preserve for review upon appeal the alleged error in the ruling of the court. When a demurrer has been interposed to a pleading setting forth a cause of action or a defense, and such demurrer is overruled and exception to such ruling duly saved, the demurrant by going to trial waives all objections to such ruling except two: he does not waive objection to the jurisdiction of the court nor to the failure of the pleading to state facts sufficient to constitute a cause of action or of defense. De Loach Mill Mfg. Co....