Farley v. Mobile & O.R. Co.

• Decision Date: 16 January 1907
• Citation: 42 So. 747,149 Ala. 557
• Parties: FARLEY ET AL. v. MOBILE & O. R. CO.
• Court: Alabama Supreme Court

42 So. 747

149 Ala. 557

FARLEY ET AL. v. MOBILE & O. R. CO.

Supreme Court of Alabama

January 16, 1907

Appeal from Tuscaloosa County Court; H. B. Foster, Judge.

Action by Charles F. Farley and others against the Mobile & Ohio Railroad Company. Judgment for defendant. Plaintiffs appeal. Affirmed.

This was an action for the recovery of $180 damages for destruction by fire of 18 tons of hay alleged to have been caused by sparks emitted from one of defendant's engines. The defendant interposed the plea of the general issue. The evidence tended to show that the hay was in a field in shocks or ricks near the defendant's right of way, and was burned. The evidence tended to show that the grass was dry in the fields and along the right of way, and that, soon after the local freight train belonging to defendant passed this field going south, the hay ricks were discovered to be on fire. It was further shown that the grass and stubble were burned without a break from near defendant's right of way to the hay rick. The evidence for defendant, and its tendencies, together with the tendencies of the rebuttal evidence introduced by the plaintiff, is sufficiently set out in the opinion of the court. A number of charges were requested by the plaintiff and refused by the court, but it is not necessary to here set them out.

Daniel Collier and M. P. Ormond, for appellants.

J. M Foster, for appellee.

DOWDELL J.

The plaintiffs introduced evidence of facts from which it was open to the jury to reasonably infer that the fire which destroyed plaintiffs' property originated from sparks emitted from a passing locomotive of the defendant company and falling into the dry grass and stubble near the right of way of the railroad from whence the fire was communicated to the ricks of hay in question. There was no positive or direct proof of any act of negligence on the part of the defendant or its servants; the same being only inferential. The evidence, however, was sufficient under the well-settled rule of law to raise a presumption of negligence in the equipment of the locomotive or its handling, casting upon the defendant the burden of showing proper equipment and handling of the locomotive to overcome the presumption so raised. In order to meet the prima facie case thus made by plaintiffs' evidence, the defendant introduced evidence showing that the locomotive was at the time properly equipped with a spark arrester and such other appliances as were in use by well-regulated railroads, that the same were in good repair and proper condition, and that the locomotive was at the time properly and skillfully handled. This evidence was without dispute, and by it the presumption arising from the plaintiffs' evidence was met, and the burden shifted back to the plaintiffs. The only evidence offered in rebuttal by the plaintiffs was the testimony of one Monroe Fair, which was as follows: "That he lived in the neighborhood of Duncanville, Ala., which is a station of defendant company in Tuscaloosa county, Ala.; that he saw the train going south on the morning of the 24th day of October, 1904, between 9...