Jacksonville, T. & K.w. Ry. Co. v. Peninsular Land, Transp. & Mfg. Co.

• Decision Date: 25 April 1891
• Citation: 9 So. 661,27 Fla. 1
• Parties: JACKSONVILLE, T. & K. W. RY. CO. v. PENINSULAR LAND, TRANSPORTATION & MANUFACTURING CO.
• Court: Florida Supreme Court

9 So. 661

27 Fla. 1

JACKSONVILLE, T. & K. W. RY. CO. v. PENINSULAR LAND, TRANSPORTATION & MANUFACTURING CO.

Florida Supreme Court

April 25, 1891

Appeal from circuit court, Orange county; JOHN D. BROOME, Judge.

The charges referred to in the following opinion, as numbered 3 and 20, are as follows:

'(3) That the question of negligence is one for the jury to determine; that, if the jury believes from the evidence that the property of the plaintiff was destroyed by fire and that said fire was the primary result of the negligence of the defendant, either in not having proper appliances on his engine, or, if it did have them, in not having them so adjusted as to prevent the escape of the sparks in unusually large quantities, calculated to ignite combustible material, then the defendant is liable to the plaintiff; that it is for the jury to decide whether the burning of the plaintiff's property was the direct consequence of fire caused by sparks from defendant's engine; that, if the jury believe the fire, where it originally started, was caused by sparks from the defendant's locomotive, and that said fire spread whether from the force of the elements or the inflammable character of the buildings, and burned continuously from building to building to plaintiff's buildings and destroyed them, and that the plaintiff either had no power to arrest the flames, or was not present, and consequently could not do anything towards arresting the flames, the jury have the right to conclude that the fire set by the defendant's engine was the proximate cause of the destruction of the plaintiff's property.'

'(20) That the defendants are required to exercise the utmost care in running through a town or village where buildings are constructed of wood, and are situated so near to their road as to be exposed to fire that may come in large and dangerous quantities from their locomotive; and especially so if at the time the wind was blowing in the direction from the engine to wards the buildings. Under such circumstances, the defendants are bound to exercise a greater degree of care than would be required of them when running trains in the country, where there is no property near their track exposed to fire, and for the want of such care fire in large, unusual, and dangerous quantities is permitted to escape from the smoke-stack of their engine, and such fire is communicated and they are consumed, the defendants are liable for the damage sustained thereby, unless the negligence of the owners of the building in caring for and protecting their property concurred in producing the result. That a degree of the care which is required of the defendant is to be proportioned to the danger to be apprehended of inflicting injury on the person or property of others, and the defendant controlling the engine was bound to exercise the utmost vigilance while operating its engine on the streets of a village lined with wooden buildings; and if from the faulty construction of the engine, or from the want of proper appliances upon it to prevent the escape of sparks in large and dangerous quantities and of unusual size, or if from the failure to have such appliances so adjusted as to prevent the escape of sparks in large and dangerous quantities and of unusual size, or if from an unskillful management of the engine, or from want of such care, the property of the plaintiff is destroyed, the defendant is liable.'

COUNSEL

J. R. Parrott, Robt. W. Davis, Hammond & Jackson, and T. M. Day, Jr., for appellant.

Alex. St. Clair-Abrams and Beggs & Palmer, for appellee.

OPINION

RANEY, C.J.

This is an appeal from a judgment recovered against appellant by the appellee in April, 1890, for the sum of $52,909.03 and costs in an action of trespass.

The amended declaration states that the defendant, who is acorporation under the laws of Florida, on April 9, 1888, owned, controlled, managed, and operated a railroad from the town of Sanford, in Orange county, to Tavares, in Lake county, in this state, known as the 'Sanford & Lake Eustis Division of the Jacksonville, Tampa & Key West Railway Company;' and that at the same time, and at the time of the construction of the said Sanford & Lake Eustis road, the plaintiff, a body corporate under the laws of this state, was the owner of certain buildings in Tavares, to- wit: The Peninsular Hotel, of the value of $40,000; a store building on Tavares boulevard, at the corner of New Hampshire avenue, of the value of $6,000; and another store building, on the same boulevard, and near the same avenue, of the value of $2,000; one livery stable, valued at $1,500; one cottage, on East Ruby street, valued at $600; another at the corner of the same street and Joanna avenue, valued at $500; two other cottages on the same avenue, valued, respectively, at $500 and $400, and one on Texas avenue, valued at $400; and that the plaintiff was at the time stated the owner of the following personal property, viz.: The furniture and entire outfit of the hotel, of the value of $16,000; the counters, shelves, cases etc., in the first-named store, of the value of $1,000; chairs, tables, maps, desks, life-preservers, and harness of the value of $1,000; one outfit of printing material, of the value of $1,200,--the buildings, tenements, and personal property aggregating in value the sum of $72,100. That the railroad was constructed along Tavares boulevard, within 150 feet of plaintiff's stores and hotel, and within 1,000 feet of all the other above-described property; and that defendant, although well aware of the inflammable nature of the material of which the buildings, tenements, and personal property was composed, and of their liability to take fire, negligently and carelessly permitted its locomotive engines, operated and controlled by its agents, servants, and employes, to be run along the said boulevard without taking necessary and proper precaution to prevent sparks of fire escaping from the smoke-stack of the locomotive engines, thereby endangering the property of the plaintiff to destruction by fire; and that, on the morning of the day aforesaid, the defendant's train of cars, drawn by one of its locomotive engines, and controlled, managed, and operated by one of its employes, agents, and servants, started from the said boulevard for Sanford, the said locomotive not having a spark-arrester therein, (if there was any spark-arrester at all,) so arranged as to prevent the escape of sparks from the smoke-stack; and the defendant having negligently, recklessly, and carelessly omitted and failed to exercise due care and precaution to prevent the escape of sparks of fire from the smoke-stack of said locomotive engine, and not exercising due care and diligence in managing, controlling, and operating the locomotive, it, the said locomotive, there being at the time of leaving said boulevard, and before, a high wind blowing, threw out from its smoke-stack a considerable number of sparks and blazing fragments of wood, which then and there set fire to a certain wooden sidewalk on said boulevard, and the fire was communicated to the adjacent buildings, including the plaintiff's said buildings, tenements, and personal property, and plaintiff's properties aforesaid were, all and each of them, totally destroyed by said fire; the plaintiff being without fault, and unable to arrest or prevent the spread of the fire, which fire was caused by the gross negligence of defendant in not exercising due care and precaution in preventing the escape of the sparks from the locomotive; the plaintiff claiming $75,000 damages.

A demurrer was filed to this declaration; but, the general assignment of error, that the action of the court overruling it was erroneous, having been submitted 'without argument,' we may treat the assignment as abandoned. We may remark, however, that we perceive no defect in the declaration.

The demurrer having been overruled, the defendant filed five pleas:

(1) Not guilty.

(2) That it did not own, manage, control, or operate a certain railroad, or any railroad, running from the said town of Sanford to that of Tavares, and known as the 'Sanford & Lake Eustis Division of the Jacksonville, Tampa & Key West Railway,' and was not the owner, manager, controller, or operator of any such railroad on the 9th day of April, 1888, or at any time prior or subsequent to this date.

(3) That plaintiff is not a corporation, as alleged.

(4) That the plaintiff, by its own acts, so contributed to its own loss and injury that it has no right of action.

(5) That whatever loss or damage the plaintiff may have sustained, as set forth in the declaration, was by its own fault and negligence.

Issue was joined on these pleas, but the third plea has been abandoned in this court.

The questions to be considered next arise under the issue made by the second plea.

The plaintiff delivered to the defendant's attorney, on July 30, 1889, interrogatories for discovery, addressed 'to the superintendent' of the defendant company 'an officer of said body corporate,' and other interrogatories addressed to Charles C. Deming, secretary of the defendant company, 'an officer of said body corporate; such interrogatories being accompanied by a notice to such attorney, requiring that the interrogatories should be answered by affidavit within 10 days. Answers to the former interrogatories were made by one J. A. Larned (he swearing that he is superintendent of the company) on the 31st day of the following month, and to the latter by Deming, the secretary, two days before; and on the 12th of September other interrogatories, addressed to the same secretary, were served, and he answered them on the 1st day of October; and afterwards, on a subsequent day in the same month, filed an...