Kimball v. Borden

• Decision Date: 27 September 1897
• Citation: 95 Va. 203,28 S.E. 207
• Parties: KIMBALL et al. v. BORDEN.
• Court: Virginia Supreme Court

28 S.E. 207

95 Va. 203

KIMBALL et al.

v.BORDEN.

Supreme Court of Appeals of Virginia.

Sept. 27, 1897.

Appeal — Presumption of Error — Pleading— Duplicity — Certainty — Possession — Railroads — Fires — Negligence — Presumption— Evidence—Instructions.

1. An instruction based on one of the grounds of alleged negligence, when there was no evidence tending to support said ground, was erroneous.

2. Such instruction was presumed to have influenced the verdict, especially where a contrary verdict could not have been set aside as unwarranted by the evidence.

3. Duplicity in the declaration is not a ground for demurrer, since it could be raised only by special demurrer, and such demurrers have been abolished.

4. A good cause of action being stated, the declaration is not demurrable, though the averments be not as clear and certain as they should be.

5. An averment that plaintiff was seised and possessed of certain buildings, in and about which certain personal property was situated, is a sufficient averment that such property was in plaintiff's possession to enable him to maintain an action for its destruction, though it is not an averment of ownership.

6. Where plaintiff in an action against a railroad company for negligently setting fire to his property shows that the fire was caused by sparks from defendant's engine, and bases his right on the ground of defects in such engine, and negligence on the part of defendant's employes, the burden of proof is upon defendant to overcome the presumption of negligence.

7. The issue being the origin of a fire, evidence was admissible to prove the emission of sparks from defendant's engine about the time of the fire.

Error to circuit court, Warren county.

Action by one Borden against Kimball and Fink, receivers of the Norfolk & Western Railroad Company, for destruction of property by fire. There was a judgment in favor of plaintiff, and defendants bring error. Reversed.

W. H. Travers, for plaintiffs in error.

M. L. Walton and O'Flaherty & Fulton, for defendant in error.

BUCHANAN, J. This is a writ of error to a judgment rendered in favor of the defendant in error against KimBall and Fink, receivers of the Norfolk & Western Railroad Company, for the negligent destruction of his property by fire.

The first error assigned is to the action of the court in giving plaintiff's instruction No. 1, on the ground that there was no evidence upon which to base it.

This instruction is plainly predicated upon the hypothesis (though some effort is made in argument to put a different construction upon it) that combustible material outside of the plaintiff's premises was first set on fire, and from it the fire which caused the destruction of his property was blown to his premises. There was no evidence tending to show that the fire originated in the combustible material which the railroad company had allowed to accumulate on its right of way, or that the plaintiff's property was destroyed by fire communicated from the defendants' right of way.

It has been repeatedly held by this court that it is error to give an instruction when there is no evidence tending to prove the facts upon which the instruction is based. Pasley v. English, 10 Grat 236; Rea v. Trotter, 26 Grat. 585, 594; Bartley v. McKinney, 28 Grat. 750, 761; Borland v. Barrett, 76 Va. 128, 133; Railroad Co. v. Neely, 91 Va. 539, 542, 22 S. E. 367; Railroad Co. v. Joyner, 92 Va. 354, 362, 23 S. E. 773; Michie v. Cochran, 93 Va. 641, 648, 25 S. E. 884.

The reason for this is that the tendency of such instructions is to mislead the jury by withdrawing their attention from the legitimate points involved in the issue. Juries are sufficiently prone to indulge in conjectures without having possible facts not in evidence suggested for their consideration. Michigan Bank v. Eldred, 9 Wall. 544, 552; Railroad Co. v. Houston, 95 U. S. 697.

It is also well settled that, if a misdirection or other mistake of the court appear in the record, it must be presumed that it affected the verdict of the jury, and is therefore a ground for which the judgment must be reversed, unless it plainly appear from the whole record that the error did not and could not have affected the verdict 4 Minor, Inst. (4th Ed.) 937; Kincheloe v. Tracewells, 11 Grat. 587, 588; Bank v. Waddill, 27 Grat. 448; Edmunds v. Harper, 31 Grat. 637, 644, 645; Electric Co. v. Garthright, 92 Va. 627, 631, 24 S. E. 267, and cases there cited.

The instruction complained of was based upon one of the grounds of negligence relied on in the declaration. It was pertinent to the case as made by the pleadings, and was proper to be given if there had been evidence tending to prove the hypothetical state of facts upon which it was based. It may be that it did not affect the verdict of the jury. If the evidence in the case is such that any other verdict than that found by the jury would have to be set aside, as being contrary to the evidence or without evidence to sustain it, then it may bethat a court could say that an instruction not based upon any evidence in the cause did not and could not have affected the verdict. But that cannot be said in a case like this, where, if the verdict had been for the defendants instead of the plaintiff, the court could not have set it aside, on the ground that it was contrary to the evidence.

The action of the court in overruling the demurrer is assigned as error in the brief, though not in the petition.

It is based upon two grounds. One is that the declaration fails to advise the defendants whether the destruction of the property was by fire communicated to it directly by sparks from the railroad engines, or by fire communicated to it from combustible matter burning on its right of way, or by both. The other is that if it be construed as averring that the property was set on fire directly by sparks from the engines, and also by fire from the right of way, it sets out two distinct causes of...