Folsom v. Illinois Cent. R. Co.
| Decision Date | 04 February 1918 |
| Docket Number | 19933 |
| Citation | 116 Miss. 561,77 So. 604 |
| Court | Mississippi Supreme Court |
| Parties | FOLSOM ET AL. v. ILLINOIS CENTRAL RAILROAD COMPANY |
APPEAL from the chancery court of Hinds county, HON. O. B. TAYLOR Chancellor.
Bill by Henry Folsom and others against the Illinois Central Railroad Company. Bill dismissed and plaintiff appeals.
The facts are fully stated in the opinion of the court.
Reversed and remanded.
G. L Teat and J. A. Teat, for appellants.
Since the chancellor found that the property of the complainants was totally destroyed by the fire set out by sparks emitted from defendant's locomotives, the judgment and decree must be for the complainants.
Under Law 1912, chap. 151, in effect March 7, 1912, which reads as follows to wit: "That each railroad corporation owning or operating a railroad in this State shall be responsible in damages to every person and corporation whose property may be injured or destroyed by fire communicated, directly or indirectly, by locomotive engines in use upon the railroad owned or operated by such railroad corporation, and each such railroad corporation shall have an insurable interest in the property upon the route of the railroad owned and operated by it and may procure insurance thereon in its own behalf for its protection against such damages. "
We have carefully read the case of Miss. Home Ins. Co. v Louisville, New Orleans & Texas Railroad Company, 70 Miss. 119, and the exhaustive opinion of Judge COOPER. Also the case of Tribbette v. Illinois Central Railroad Company, 71 Miss. 121, and the carefully written opinion of Judge WOODS, and note the law of negligence laid down in these cases. But the legislative mandate has changed it and changed it most materially. The word "negligence" does not appear in Chap. 151, Laws 1912. The question of negligence no longer exists.
The spark arresters of the "most improved make," and "in good order at the time," the "competent and skilled employees in the exercise of due care and caution," is no longer a defense to a fire caused by the engines of a railroad.
The law now is that if damage is caused by fire communicated from the engines operated on a railroad's tracks, it is liable therefor. It is no longer a question of negligence. This defense is no longer to be heard. The act of communicating the fire by the operation of the engines on the tracks of the railroad fixes and determines the liability.
The case of Drake v. Y. & M. V. Railroad Company, 79 Miss. 84, no longer has any application and the statute goes beyond the broad opinion of Judge WHITFIELD in his opinion in the case of A. & V. Railroad Company v. Barrett, 78 Miss. 432. Property damaged or destroyed by fire communicated directly or indirectly by locomotive engines in use on the railroad, etc.
The statute is indeed a broad one, but the wisdom of it cannot be questioned. What right have I to burn up your property, provided I have certain "spark arrest-erors" certain competent and skilled servants?" Is the loss any less to you? I have nevertheless destroyed your property. I have injured you. Can I say that the manner in which I have carried on my business with the fire and engines give me any right whatever to destroy your earnings? No, the question of my negligence by this wholesome statute is entirely eliminated. The act of destroying your property by my fire is the question. I have not any right to destroy your property with the fire from my furnaces, and if I do, I must restore the damage to you.
The chancellor found the fact to be that "The fire which destroyed the house and its contents, the property of the complainants, was set out by the sparks which were emitted from one of defendant's locomotive engines."
With this finding of fact, the judgment and decree should have been in favor of complainants.
Wells, May & Sanders, for appellee.
Unless this court is prepared to say that the decree of the chancellor is manifestly wrong on the facts, and that there was no evidence in support of this finding, the decree of the court below must be affirmed. As to the evidence, the chancellor was required to discharge the duty of a jury and it has many times been held by this court, that the findings of the chancellor of the facts will no more be disturbed on appeal, than would be the verdict of a jury in the same state of the case. Coffee v. Coffee, 24 So. 262; Interstate Cattle Co. v. Lapsley, 24 So. 532; Clifton v. Clark & Co., 48 Miss. (1902) 795, 37, So. 747; Simmons v. Hutchinson, 81 Miss. (1902) 351, 33 So. 21; Deredyn v. Donovan, 81 Miss. (1902) 696, 33 So. 73; Simmons v. Hutchinson, 81 Miss. (1905) 351, 33 So. 21; Melchoir v. Kahn, 38 So. (1905) 347; Doleman v. White, 38 So. (1905) 336; Donald v. Cardwell Mach. Co., 38 So. (1905) 1039; Ladnier v. Steward, 38 So. (1907) 748; Gross v. Jones, 89 Miss. (1910) 44, 42 So. 802; Moyse v. Howie, Miss. , 53 So. 402.
There are no errors of law assigned and none to be considered on this appeal.
In the brief on file for the appellants, counsel have something to say about chapter 151 of the Laws of 1912, and the radical effect of that chapter on the result of fires which may be caused by the operation of locomotives on railroads, but we submit that upon reading the decree of the court below, it will be seen that the said statute was not in any manner involved, and there was no failure on the part of the chancellor to give it full force and effect, and that the decree in this case does not call for any construction of that statute by the court.
It will be observed that in the first section of the decree, the chancellor found as a fact only this and nothing more; that at the close of the testimony offered on behalf of the complainants a prima-facie case had been made by that evidence; that the fire which destroyed the house and its contents was set out by sparks emitted from one of the defendant's locomotives. That was all, and if no other evidence had been produced, he would have rendered a decree in favor of complainants, in accordance with the requirements of chapter 151 of the Laws of 1912.
Complainants' case, and the burden which they assumed when the original bill was filed, was to prove by the preponderance of the evidence, that the fire which destroyed their property, was caused by the operation of the locomotive of the defendant railroad company. In the second section of the decree the chancellor found that at the close of all of the evidence in this case, the complainants had failed to make out their case by the preponderance of the evidence, and legal burden of proof not having been sustained, the complainants had no right to recover, and the bill was dismissed.
What was complainant's case? It was to prove by the...
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