Illinois Cent. R. Co. v. Thomas

• Decision Date: 07 June 1915
• Docket Number: 16683
• Citation: 68 So. 773,109 Miss. 536
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. THOMAS

68 So. 773

109 Miss. 536

ILLINOIS CENTRAL RAILROAD COMPANY v. THOMAS

No. 16683

Supreme Court of Mississippi

June 7, 1915

APPEAL from the circuit court of Copiah county. HON. D. M. MILLER Judge.

Suit by J. J. Thomas against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals.

The instruction referred to in the opinion of the court, and which was the only instruction given for the appellee, is as follows:

"The court instructs the jury, for the plaintiff, that if you believe from all the facts and circumstances offered in evidence in this case that the fire in question was set out by sparks negligently allowed to escape from defendant's train and locomotive, and that the fire so set out spread to and threatened the destruction of plaintiff's property and that plaintiff, exercising due care and caution undertook to extinguish the said fire in order to prevent it from destroying his own property, and that while fighting the fire, and exercising such care as a reasonably prudent man would have exercised under the circumstances, the flames were blown in his face, and he was burned and injured thereby then the defendant is liable for all the injuries resulting to him on account of the said burning, and in estimating his damages you should take into consideration, not only his loss of time, but the pain and suffering endured by him, if any, and also what damage was done to his eyesight, if you believe from the evidence there was any such damage."

The following is the form in which counsel for appellant suggest the above instruction should have been given:

"The court instructs the jury, for the plaintiff, that if you believe, from all the facts and circumstances offered in evidence in this case, that the fire in question was set out by sparks negligently allowed to escape from defendant's train and locomotive, and that the fire so set out spread to and threatened the destruction of plaintiff's property, and that plaintiff, exercising due care and caution, undertook to extinguish the said fire in order to prevent it from destroying his own property, and that while fighting the fire, and exercising such care as a reasonably prudent man would have exercised under the circumstances, the flames were blown against him and he was burned and injured on the nose, face, and hands, then the defendant is liable for all such injuries to his nose, face, and hands; and that if you further believe that, in attempting to get out of the reach of the flames, the plaintiff struck his head against a post, and that that caused him to open his eyes, and that the opening of his eyes caused him to get burned in the eyes, and you further believe from all the circumstances of the case that the defendant foresaw, or ought to have foreseen, that the burning of plaintiff's eyes would be the natural and reasonable result of the setting out of the fire, then the defendant is also liable for the injuries to plaintiff's eyes," etc.

No error was committed.

Mayes & Mayes, for appellant.

It is as plain as day that the proximate cause of plaintiff's injury was his own independent act of going in to fight the fire, and that there is absolutely no liability upon the defendant. 65 Tex. 274; 70 S.W. 734 (Mo.)

The second reason why the peremptory instruction should have been granted for the defendant was because plaintiff did not adopt the usual and reasonable method of fighting this fire. But on the contrary, he adopted a method so unusual and so exceedingly dangerous that it amounted to utter recklessness and he adopted this method knowing the danger he was running and manifesting a willingness to assume the risk.

The next error of which we complain was the giving by the trial court of the first and only instruction for the plaintiff. Our principal objection to this instruction is that it utterly ignores the incident of the plaintiff's bumping his head against the post, which he said caused him to open his eyes and receive burns in them.

Therefore, to come back to our starting point, we say that the injuries which were sustained by plaintiff were of two classes. First, those to his nose, face and hands, which were the direct result of his running in to fight the fire; second, those to his eyes, which were the direct result of his bumping his head; and that as to these injuries of the first class, since the record shows no conflict in the testimony as to how these injuries to plaintiff's nose, face and hands were received, that the trial court had the right to instruct the jury, as a matter of law, what was or was not, the proximate cause of these injuries. (The court instructed the jury wrong on this, but, as a matter of law it did have the right to instruct). But as to the injuries of the second class, which were the injuries to the eyes, the record shows a sharp conflict in the testimony of plaintiff himself as to the exact cause of his getting burned in his eyes, therefore, as to the injuries of the second class, to wit: the injuries to plaintiff's eyes, the question of proximate cause must be left to the jury. 13 Am. & Eng. Ency. Law, 461.

When you come to consider this case in the light of all of the facts it is apparent that it simply would not be right nor just to permit a recovery by this plaintiff. Take the matter of the setting out of the fire. It is by no means satisfactorily proven that this fire was set out by the defendant. No one saw this locomotive emitting sparks. No one saw the fire when it first flared up. When the fire was first noticed it had made considerable progress and the train was still in sight. Now it is a matter of common knowledge that fire set out by sparks from a locomotive begins by smouldering for a long time before it actually springs into life. But this plaintiff would have the court believe that this fire was kindled with the same alacrity as if a blazing torch had been thrust into the grass. But such a thing would be impossible. The very shortness of the interval of time between the passing of the train and the discovery of the fire, already in advanced stages, proves conclusively that its origin could not have been due to sparks from the locomotive. There was not sufficient time.

There comes the intervening independent act of the plaintiff in going in to fight the fire. Even if we admit for the sake of the argument that the defendant did negligently set out this fire, it could never be said that the defendant foresaw, or ought to have seen, that as a natural result of the setting out of the fire, the plaintiff would go out to extinguish it; or, if the defendant could have foreseen that the plaintiff would go out to extinguish the fire, certainly it could not be said that the defendant could foresee that this able bodied, vigorous man, who was able to move from place to place with agility, would so handle himself as to get hurt in the effort to extinguish the flames. The injury to the plaintiff was such a remote result of the setting out of the fire that it shocks every sense of justice to hold the defendant accountable for it.

Then comes the foolhardiness of the plaintiff in adopting his own peculiar style of fighting this fire and the utter abandonment of himself to these dangers. Common sense, or animal instinct, would teach even a child that the only reasonable way to fight fire is to approach the flame from the windward; but here this plaintiff says himself that he took up his stand in front of the fire, or to the windward of it, and directly in the usual course of the wind; that as the wind would change and momentarily blow the flame away from him, he would rush in and strike the flames a few blows with his pine-top, counting on being able to rush out again before the wind changed back to its usual course. This recklessness would prevent plaintiff from recovering in any case, regardless of the other facts. His method of fighting fire shows that the plaintiff knew of the danger which he was running and that he voluntarily took the risk. Plaintiff knew that, if, when he had rushed in to beat the flame, he was not successful in rushing out again before the wind changed, he would be caught and burned. This plaintiff staked his safety on a whisk of wind. What could be more foolhardy than for a man to stake his safety on such an uncertain thing? The defendant would not be the insurer of plaintiff's safety even were the plaintiff acting with ordinary precaution. Certainly the defendant is not to be held the insurer of plaintiff's safety when plaintiff is gambling against such overpowering odds and staking his life and safety on a mere whisk of the wind.

H. J. Wilson, for appellee.

We shall, confine ourselves to the argument of the question of whether or not the negligent act of the Railroad Company in setting out the fire was the proximate cause of the injury.

The appellant's contention is supported by the case of Seale v. Gulf Etc. Railroad Company, 65 Texas, 274. In that case fire was set out on Mrs. Seale's premises by the negligence of the Railroad Company. She undertook to put out the fire and while so doing, her clothes caught on fire and she was burned, resulting in her death. The court held that whether the decedent was negligent or not in her attempt to put out the fire, it was this attempt, and not the original negligence of the defendant in starting the flames, that was the proximate cause of her death. This case was afterwards followed by the Missouri court of appeals in the case of Logan v. Wabash Railroad Company, 96 Mo.App. 461. We find no other authorities supporting appellant's contention.

These cases, I contend are wrong in principle and opposed to the weight of authority. Appellee was undertaking to extinguish a fire which was threatening the...