Florida East Coast Ry. Co. v. Welch

• Decision Date: 16 April 1907
• Citation: 53 Fla. 145,44 So. 250
• Parties: FLORIDA EAST COAST RY. CO. v. WELCH.
• Court: Florida Supreme Court

44 So. 250

53 Fla. 145

FLORIDA EAST COAST RY. CO. v. WELCH.

Florida Supreme Court, Division B.

April 16, 1907

Error to Circuit Court, Dade County; Minor S. Jones, Judge.

Action by J. H. Welch against the Florida East Coast Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

In an action against a railroad company for damages to trees caused through its negligent communication of fire from a locomotive to the lands of the plaintiff, where the engine charged with the fire is not identified, the plaintiff should be allowed to show that other engines of the defendant company started other fires at or about that time, either before or after the destruction of the trees, or emitted sparks, as tending to prove the possibility, and a consequent probability, that some locomotive of defendant company caused the fire on the occasion stated.

Where the plaintiff in his declaration seeks to recover for damages by a fire alleged to have been negligently set by a locomotive of defendant on or about the 10th day of January 1904, and the evidence shows that the fire which caused the damage was set by the locomotive on January 17, 1904, and there was no objection by defendant at the trial to the testimony that the fire occurred on January 17, 1904, and defendant did not claim that he was surprised by the variance, or make any showing that he was misled to his prejudice in the preparation of his defense, or request postponement of the trial on account thereof, and made no objection to the form of the statement of time in the declaration, the court did not err in refusing to charge the jury that plaintiff cannot recover because of this variance between the declaration and the proof.

There is no fatal variance between the allegation and proof, where the declaration alleged that the defendant company, through its negligence, communicated fire to the lands of the plaintiff by and from a locomotive, which fire, so communicated from the locomotive, spread over and upon the lands of the plaintiff, and burned up and injured trees of the plaintiff, and the proof showed that the fire was not set by and from the locomotive directly, or in the first instance, to the land of the plaintiff, but the fire was negligently set by defendant's locomotive upon the adjoining land of another, and spread thence naturally to the land of the plaintiff and destroyed his trees. The fact that a fire set by defendant's locomotive passes over lands of another before reaching plaintiff's property does not render defendant's negligence any the less the proximate cause of the destruction of such property by fire.

Where the setting of a fire by and from the locomotive of defendant was the proximate cause of the injury to plaintiff's trees, it was none the less the proximate cause by reason of the change in the direction of the wind which was blowing at the time the fire was set, and which continued to blow without any extraordinary increase in its velocity until the flames were carried by the wind to the trees of plaintiff and injured and destroyed them. A simple change in the direction of the wind is not an intervening cause that will prevent recovery.

It is not error, if the judge refuse to give instructions asked for, however pertinent, if the same in substance and effect have already been given by him to the jury.

The provisions of section 3148 of the General Statutes of 1906 make proof of damage by fire from defendant's locomotive prima facie evidence of negligence, and it devolves upon the railroad company to make it appear that their agents or servants have exercised all ordinary and reasonable care and diligence.

An instruction that 'one who owns property alongside of the railroad must know that trains are expected to run with regularity, and, if there are special risks arising from no want of care in the proper equipment of engines and trains those risks are not chargeable to the railroad, but are incident to the situation, and the extra care they demand devolves upon the other party, and the consequence of his not exercising it must fall upon him, because the railroad is not in fault,' is confusing, misleading, and argumentative and the court did not err in refusing to so charge.

COUNSEL Geo. M. Robbins, for plaintiff in error.

G. A. Worley, for defendant in error.

OPINION

PARKHILL J.

The defendant in error, hereinafter to be called the plaintiff, sued the plaintiff in error in the circuit court for Dade county in an action for damages caused through its negligent communication of fire from a locomotive engine to the lands of the plaintiff, whereby a large number of orange and grape fruit trees of plaintiff were consumed and injured. The declaration filed on the 6th day of February, 1906, is as follows:

'Now comes the plaintiff, J. H. Welch, by his attorney, G. A. Worley, sues the defendant corporation, the Florida East Coast Railway Company, a Florida corporation, and claims damages in the sum of $5,000.

'For that, whereas, heretofore, to wit, in the month of January, A. D. 1904, and previous thereto, the plaintiff was the owner of certain lands lying and being in the county of Dade and state of Florida, and certain valuable orange and grape fruit trees and other citrus fruit trees growing thereon, said land being located near what is known as 'Arch Creek,' near the defendant's railroad right of way; that during the said month the defendant corporation was a railroad corporation engaged in operating a railroad running from Miami to Jacksonville, Fla., and along by the lands of this plaintiff; that said defendant kept and maintained said railroad in the county of Dade and state of Florida, and established at Arch Creek a flag station along the line of said defendant's right of way, at which trains being run and operated by the defendant company were often stopped; that in operating said railroad said corporation, the defendant, made use of locomotive engines operated by steam power.

'That during said month of January, A. D. 1904, on or about the 10th day thereof, the defendant company through its negligence communicated fire to the said lands of the plaintiff by and from a certain locomotive engine, which locomotive engine was upon the railroad track, which fire so communicated from said engine spread over and upon the lands and premises of the plaintiff, and burned up, consumed, and injured a large quantity of orange and grape fruit trees, and other trees belonging to the plaintiff and being upon the said land. The plaintiff was not guilty of contributory negligence.

'The said trees so burned up, consumed, and injured by the said fire so communicated by the said defendant company were of great value, to-wit, $5,000.

'That as soon as possible after said fire was so communicated and said trees burned up, and within a reasonable time, and within the time allowed by law, the plaintiff gave notice to the said defendant company of said fire and the damage done, and demanded settlement therefor; that the said defendant company refuses and still refuse to settle therefor, to plaintiff's great damage in the sum of $5,000.

'Wherefore the plaintiff brings this his suit against the defendant corporation, and claims damages in the sum of $5,000.'

The defendant filed a plea of not guilty. A trial was had, which resulted in a verdict for plaintiff for $1,100. A final judgment was rendered, and defendant sued out a writ of error.

I. There are 19 assignments of error. The first, fifth, tenth and fourteenth are argued, and will be considered, together. Under these assignments it is contended that 'the court erred in permitting the plaintiff and his witnesses, W. P. Rodgers, J. C. Smith, and D. B. Mabry, to give evidence of other fires set by locomotives of defendant, not shown to have been set by the same engine which plaintiff's evidence tends to show set the fire of January 17, 1904, for which plaintiff seeks recovery.' The only witness who knew anything about the starting of the fire was B. De Winkler. He testified as follows: 'I am a farmer, and my place is about half a mile from Capt. Welch's place following the road, or a quarter of a mile in a straight line. I remember about the fire at his grove; that is, I remember about the fire. I did not know at the time that a part of his grove was burned. The fire started about ten a. m., about half way between the depot and Capt. Welch's grove. It started in the pine woods not far from the county road. I could not tell, where I was; not far. When it started the wind was blowing from the southwest, and it changed to the south, and blew the fire over into the pine woods towards the grove. It burned about 1 1/2 days or more. It went clear up to Arch Creek. It was Sunday, about 10 or 11 o'clock, when I first saw the fire in the woods. The wind changed in the afternoon. It came from the southwest in the morning, and the fire blew down towards the grove; and towards the afternoon the wind turned towards the south and went to the woods. Three trains came down and two went up that morning. The first train came down about 6:30 a. m., and there was one went up a little before. They met at Hallandale. Then the train running between Palm Beach and Miami about 10:30 a. m. The fire started between 10 and 11 a. m.' Witness' house is about 1,660 feet from the railroad depot, and he was at his house that Sunday morning. His boys first called his attention to the fire. It was between the depot and Capt. Welch's grove; about 300 feet north of the depot. He first saw it between 10 and 11 o'clock. He saw the trains pass that morning. 'I am postmaster at Arch Creek, and I am also depot agent for the Florida East Coast Railway Company for selling ...