Kurn v. Fondren

• Decision Date: 25 November 1940
• Docket Number: 34331
• Citation: 189 Miss. 739,198 So. 727
• Court: Mississippi Supreme Court
• Parties: KURN et al. v. FONDREN et ux

198 So. 727

189 Miss. 739

KURN et al. v. FONDREN et ux

No. 34331

Supreme Court of Mississippi

November 25, 1940

APPEAL from the circuit court of Lowndes county, HON. JNO. C STENNIS, Judge.

Action by J. W. Fondren and his wife against J. M. Kurn and another trustees of the St. Louis-San Francisco Railway Company, to recover for damages sustained because of loss of property by fire allegedly set by sparks from a locomotive engine of defendants. From a judgment for plaintiffs, defendants appeal. Affirmed.

Affirmed.

Owen &amp Garnett, of Columbus, D. W. Houston, Sr. & Jr., of Aberdeen and E. G. Nahler and A. P. Stuart, both of St. Louis, Mo., all for appellants.

We are not unmindful of the cases decided by this and other courts where fires occurred and destroyed property along the rights of way of railroads, holding that where the evidence, even though circumstantial, was such as to justify a finding that the inference that the fire was set out by a locomotive was stronger and more probable than that it was set out from another cause, makes an issue for the jury. However, every case must stand or fall on its own peculiar facts, and while the principles of law announced in all of these cases may be good law, and we do not dispute their accuracy or good purpose, however, we do say, with all confidence, that the facts presented by this record by the positive testimony of eye witnesses as well as by experts negative, rather than sustain, the facts upon which the principles laid down in those cases were and are predicated.

The evidence of the plaintiff is obscure in cogency and in probative detail and has not the support of that substantial character of definite evidence which is necessary to maintain the affirmative of the issue here involved which is required to be proved with a reasonable degree of certainty, and for that reason we urge upon you to correct the manifest error committed by the lower court in denying us a directed verdict and do here that which should have been done there, reverse the judgment and enter a judgment here for appellants.

McCain v. Wade, 181 Miss. 668, 180, So. 748.

The court erred in permitting plaintiffs and each of the other witnesses introduced by them to testify that other passenger engines than those identified as the engines passing appellees' premises on the night in question and at other times emitted sparks.

Not only the plaintiffs, but their witnesses, who did not attempt to identify any of the engines, were permitted to testify indiscriminately that they saw other passenger engines at other times and on other nights different from the night of plaintiff's fire--both before and after--throwing sparks, and although they stated that these sparks fell in grass and did not set out any fires, this testimony to the ordinary lay mind and that of the jury was highly prejudicial to defendants and should have been excluded from their consideration as it was clearly incompetent--evidence of such character in the state of the record we have here having been condemned in one of the leading cases by this court, Tribette v. I. C. R. R. Co. 71 Miss. 212, 13 So. 899.

M. C. R. Co. v. Miller, 40 Miss. 45, So. R. R. Co. v. Kendrick, 40 Miss. 374.

We are not unmindful of the subsequent cases decided by this court wherein under certain circumstances this court has held that testimony of other engines throwing sparks within a reasonable time--both before and after a fire--is held admissible as tending to prove the possibility, and the consequent probability, that some locomotive caused the fire and as further tending to show a negligent habit of the officers and agents of the railroad company, etc., such as the case of A. & V. Ry. Co. v. Aetna Ins. Co. et al., 82 Miss. 770, 35 So. 304, which seems to be one of the leading cases on this point, and which cited approvingly the decision of United States Supreme Court in case of Grand Trunk Ry. Co. v. Richardson, 91 U.S. 470, 23 L.Ed. 362, but insofar as we have been able to find, the Tribette case, supra, has never been overruled and is still the law in this state. In fact, it was approvingly referred to and re-affirmed in this particular case of A. & V. Ry. Co. v. Aetna Ins. Co. et al., supra.

The issue in the instant case was not one of negligence on the part of the defendants. That did not enter the case, --the question, and the sole and only question, was as to whether or not engines 1013 and 1014 threw such sparks, and not other engines on different nights, as would communicate the fire to plaintiffs' house. What these other engines did had nothing to do with what engines 1013 and 1014 did, and was far too remote to be allowed to remain with a jury of ordinary men.

To allow a verdict to stand on the testimony in this record would make a railroad an absolute insurer against fires of all property along and abutting its right-of-way, without regard to any showing that such fire was communicated by such railroads to such property, which is not contemplated by Section 6153 of Code of 1930, giving railroad companies an insurable interest in property abutting the right-of-way and making them liable for fires communicated to it; and we, therefore, respectfully request such reversal and a judgment here.

John H. Holloman, of Columbus, for appellees.

Appellants, by putting on evidence in the lower court after denial of their motion for a directed verdict at the conclusion of plaintiffs' testimony, cannot avail themselves here on appeal of any error, if any there be, in the denial of said motion, their action having waived same.

3 Am. Jur. 52, sec. 277; 4 C. J. 721, sec. 2636.

Everything must be considered as proved which the evidence establishes directly or by reasonable inference against the party who asks a peremptory instruction.

The findings of fact by a jury will not be set aside unless manifestly or clearly wrong, which is to say, unless clearly or manifestly against all reasonable probability.

Fact finding, which includes all material inferences and deductions which may be reasonably and logically drawn from the relevant direct facts, is a province which belongs to the jury, to be exercised by them according to the every-day experiences and knowledge and observations of the twelve men constituting the jury--not of and by any one man, be he judge or jury.

M. & O. R. R. Co. v. Cox, 153 Miss. 579, 121 So. 292.

The lower court did not err in refusing to direct a verdict for the defendants, either at the conclusion of plaintiffs' evidence, or at the conclusion of all the evidence, or in refusing defendants' requested written peremptory instruction. The evidence is sufficient to support the verdict of the jury.

Under Section 1153, Code 1930, a railroad is liable regardless of negligence. The only question now is whether the fire that caused the damage was communicated, directly or indirectly, by a railroad engine, and such origin of the fire may be sufficiently proved by circumstantial evidence, and in cases of this character, it is a question for the jury whether or not, as between two or more probable causes of the fire, the one that it was set out by a locomotive is the most probable.

G. M. & N. R. Co. v. Sumrall, 142 Miss. 56, 107 So. 281; Folsom v. I. C. R. Co., 116 Miss. 561, 77 So. 604; Liverpool, London & Globe Ins. Co. v. Kosciusko S. E. R. Co., 121 Miss. 258, 83 So. 305; Wardlaw v. So. Ry. Co., 122 Miss. 180, 84 So. 177; L. N. O. & T. R. R. Co. v. N. J. & C. R. R. Co., 67 Miss. 399; I. C. R. Co. v. Scheible, 16.2 Ky. 469; Deason v. Ala. Great Southern R. Co., 186 Ala. 100, 65. So. 172; Kansas City, Fort Smith & Memphis R. Co. v. Blaker (Kans.), 64 L. R. A. 81; New York, Chicago & St. Louis R. Co. v. Roper (Ind.), 96 N.E. 468, 36. L. R. A. (N. S.) 952; Union Pacific R. Co. v. De Busk (Colo.), 3 L. R. A. 350; L. & N. R. R. Co. v. Beeler, 103 S.W. 300, 11 L. R. A. (N. S.) 930; McCullen v. Chicago & Northwestern Ry. Co., 101 F. 66; I. C. R. Co. v. Thomas, 109! Miss. 536, 68 So. 773.

Appellants assert in their brief that this will be a case of first impression in Mississippi in fire cases where oil-burning engines are concerned, by such assertion and device patently seeking an escape from the numerous Mississippi fire cases that are so chilling to their position herein. We fail to see where there is any distinction or difference in face of the overwhelming evidence in this record that oil-burning engines do throw sparks or flaming soot, that soot is emitted from the smokestacks in large quantities and in large sizes and carry great distances depending upon the wind, that soot therefrom has been seen to hit the ground off the right-of-way, still lit or sparkling, that when some of it fell on the hand of Witness Bush, nearly burnt out, it burned him, though only barely, as he said.

Viera v. Atchison, T. & S. F. R. Co., 10 Cal.App. 267, 101 P. 690; 10 Negligence & Compensation Cases Ann. 808, note V; Miss. P. & L. Co. v. Goosby (Miss.), 192 So. 453; A. & V. Ry. Co. v. Barrett, 78 Miss. 432, 28 So. 820.

The case of McCain v. Wade, 181 Miss. 668, 180 So. 748 so heavily relied on by appellants and the only fire case as we recall that they cite and quote from to sustain their position, is clearly not in point in the case at bar for several reasons, two of which we deem sufficient to mention, namely: (a) The suit was brought under Section 3422, Code of 1930, requiring proof or negligence, which is quite different from Section 6153, Code of 1930, under which the case at bar was brought, and the purpose, legislative intendment, proof required, and situation sought to be met are entirely different; and (b) that various other persons had various other fires going in the same immediate vicinity. In the case at bar, there were no other fires...