Florida East Coast Ry. Co. v. Smith

• Decision Date: 12 June 1911
• Citation: 61 Fla. 218,55 So. 871
• Parties: FLORIDA EAST COAST RY. CO. v. SMITH.
• Court: Florida Supreme Court

55 So. 871

61 Fla. 218

FLORIDA EAST COAST RY. CO. v. SMITH.

Florida Supreme Court, Division B.

June 12, 1911

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

Action by Fulton F. Smith against the Florida East Coast Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

An affidavit for a continuance of a case because of the absence of a witness is fatally defective when it fails to state that the plaintiff cannot prove the same matters by any other witness.

Under the provisions of section 3149 of the General Statutes of 1906, a defendant railroad company is entitled to submit to the jury, under proper instructions, the question whether the injury to plaintiff's property was caused by his own negligence.

Instructions to the jury should be confined to the evidence of the case.

While contributory negligence as a defense to an action in tort should be pleaded and proven, yet, where it appears from the proofs of the plaintiff without objection, the defendant may avail itself of the same under the general issue.

While the rule that in actions to recover damages caused by the negligence of the defendant, negligence on the part of the plaintiff which directly contributed to the occurrence which caused the damage will defeat the plaintiff's action is universal, unless a different rule be prescribed by statute a different rule has been prescribed in this state by section 3149 of the General Statutes, whereby, in suits against a railroad company for injury to the plaintiff or his property if the plaintiff and the agents of the company are both at fault, the former may recover, but the damages shall be diminished or increased by the jury in proportion to the amount of default attributable to him.

The provisions of section 3149 of the General Statutes of 1906 relating to contributory negligence or apportionment of damages therefor, only apply to damages for injury to the plaintiff or to his property. If a plaintiff is guilty of contributory negligence, he cannot recover loss of profits arising out of his inability to fill orders by reason of the burning of his mill by the negligence of a railroad company.

The manner of constructing buildings within a few feet of a railroad track, where trains and engines necessarily pass and repass, including the materials of which such buildings are constructed, and the manner of their use after construction are matters upon which negligence may be predicated.

Although a mill may have been negligently set on fire by sparks from a locomotive, it becomes the duty of the owner of the property, after discovering the fire, to exercise due care by using reasonable means to extinguish the fire and to protect his property. Where the danger is not seen but anticipated merely, or dependent on future events, the owner of the property is not bound to guard against the negligence of the servants of a railroad company by refraining from his usual course, being otherwise a prudent one, in the management of his property; but when in the presence of a seen danger, as when the fire has been set, he omits to do what prudence requires to be done under the circumstances for the protection of his property, or does some act inconsistent with its preservation, he fails in his duty and negligence may be predicated upon it.

Whether the owner of property who makes efforts to put out or stay the progress of a fire negligently started have used due care in this respect is ordinarily a question for the jury.

An instruction is erroneous when it makes the owner of property negligently set on fire responsible for his failure to extinguish the same without reference to his ability to have done so by the exercise of due care by using reasonable means at his command.

An instruction is erroneous when it makes the wanton and intentional failure of the plaintiff to use due and reasonable care to extinguish a fire after the same is discovered the test of his contributory negligence therein.

After the plaintiff discovers a fire negligently set by a locomotive, it becomes his duty to exercise due care by using reasonable means to extinguish the fire and to protect his property, and if he fails so to do he may recover for his subsequent loss, but the damages shall be diminished or increased in proportion to the amount of fault attributable to him.

A railroad company is liable for any damage done to property by the running of its locomotives unless the defendant company shall make it to appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the defendant company.

Where the fatal fire has been set out from a designated or known engine, it is admissible to introduce evidence of other fires previously set out by the same engine, but not by any other engine of the defendant company, as tending to prove its defective construction or condition, or improper management. If the engine charged with the fire is not identified, the plaintiff may show that other engines of the defendant emitted sparks and set out fires at or about the time either before or after the burning of the property complained of, as tending to prove the possibility and consequent probability that some locomotive of defendant company caused the fire, and as tending to show negligence in the construction and management of the engines.

COUNSEL

Stewart & Bly, for plaintiff in error.

Landis & Fish, for defendant in error.

OPINION

PARKHILL J.

The defendant in error sued the plaintiff in error, in the circuit court for Volusia county, to recover for the burning of a certain planing mill and the contents thereof alleged to have been set on fire by a locomotive engine that the defendant company negligently failed to equip with appliances, instruments, and spark arresters, and that by reason thereof the defendant's engine while passing by said planing mill was negligently permitted to emit an unnecessary quantity of sparks and coals of fire by means whereof fire was communicated thereto, and thereby the said planing mill building together with the contents thereof was totally burned. The plaintiff claimed as special damages certain profits that he lost by being unalbe to fill existing contracts for lumber, occasioned by the burning of the mill. The defendant filed a plea of not guilty and judgment was rendered on the verdict of the jury in favor of the plaintiff for $1,992, and defendant sued out a writ of error.

We do not think the court erred in the exercise of its discretion in denying the motion for compulsory amendment of the declaration.

The court did not err in denying the motion for a continuance, because of the absence of F. L. Gardner, a witness, the affidavit in support thereof being defective in that it failed to state that the plaintiff could not prove the same matters by any other witness. Livingston v. Cooper, 22 Fla. 292, 294.

The plaintiff himself testified about the fire that caused the damages as follows:

'On the day of the burning, I was on the runway checking a load of lumber, and the passenger train came by. Bob McCracklin, my man, was loading it and I was checking it. It was very near loaded. The train was coming, and a cinder struck me in the eye, and I said 'Hold on, Bob, and stop a minute until I get this cinder out.' By that time the train was by, and he finished loading his wagon, and I told him to go ahead; I had his load check up and to go ahead. The driver went around the planing mill with his load--road went around the planing mill and around my house. I was coming down with the runway and had come down, and my wife was there, and we were walking up around the planing mill, and Bob hollowed that he smelled something burning, and he jumped off the wagon and run back to the planing mill and said, 'Your canvas is on fire, and that train has set the canvas on fire.' He called me back there, and he and my wife and I grabbed a can and put it out. The canvas was over the planer to keep my belts and things dry. * * * The fire was burning here on the table. The table comes here on the planer and then the planer goes up high, and the canvas caught fire on the table, about a foot and a half had burned in diameter when we got there and put it out. After we had put it out, Bob got on his wagon and went on and me and my wife went to the blacksmith shop.'

They had been in the shop something like five minutes, when he said to his wife, 'Lord a mercy, a fire has caught again.' She and he ran to the mill. The fire was just getting in good headway. The witness said, 'I took my pocket knife and cut the belt and started to get the belt as it fell, and a gush of wind came and it burned my hair and eyebrows. The entire planing mill burned down. * * * The canvas over the plant was an old duck tent. We put it out, as we thought, and did not examine carefully for further fire. The fire must have dropped through and was smoldering in the shavings when we left it because we didn't dig in the shavings to get the cinders out. There were shavings and sawdust about the planer. The day before that I had been running some dry-kiln flooring, and had not cleaned up there because I wasn't running the planing mill that day at all. The shavings were down around and under the planing mill, and under where the fire was. It was in these shavings but under the planer that fire started. We did not examine the shavings to see if any fire in them had caught from the canvas; I didn't think about getting down in the shavings. We just grabbed hold of the canvas and rubbed it right out--brushed it out. We knew the shavings were in there because they had been left from the day before. We generally cleaned up when we...