Louisville & N.R. Co. v. Malone
| Decision Date | 28 April 1896 |
| Citation | 109 Ala. 509,20 So. 33 |
| Court | Alabama Supreme Court |
| Parties | LOUISVILLE & N. R. CO. v. MALONE. |
Appeal from circuit court, Limestone county; Thomas R. Roulhac Judge.
Action by Matilda Malone against the Louisville & Nashville Railroad Company to recover for injury to property, caused by fire alleged to have been set by defendant's engine. From a judgment for plaintiff, defendant appeals. Reversed.
The complaint contained three counts. The first count recites that the appellant operated a railroad and ran locomotives on its track, adjacent to which plaintiff had a dwelling house etc., and that the defendant, while engaged in this business "carelessly and negligently" set fire to and burned up plaintiff's dwelling house, fixtures and furniture therein, etc. The second count was similar to the first except that the negligence alleged was that the defendant while engaged in its business, etc., "carelessly and negligently" had and used appliances and locomotives which were defective and insufficient, and allowed fire and sparks in unusual and dangerous quantities to be omitted therefrom, in consequence of which plaintiff's dwelling was destroyed, etc. The third count was similar to the first, except that the gravamen of the negligence charged is that defendant "carelessly and negligently managed and controlled a locomotive and appliances, required and used to prevent accidents by fire from sparks, whereby the plaintiff's dwelling, furniture, etc., were burned.
The tendencies of the evidence are sufficiently stated in the opinion.
Gus Garner, a witness for the plaintiff, testified that he and a man named Taylor, on returning home on the night the house of the plaintiff was burned, and before it was burned, noticed an engine on the defendant's road pulling a freight train, throwing a great many sparks, and that there was an unusual and large rush of sparks from the engine. The witness was then asked: "What was said between you and Taylor about it?" The defendant objected to this question, on the ground of immateriality and illegality. The court sustained the objection as to what Taylor said to the witness about the engine throwing sparks, but allowed the witness to state the facts that Taylor called his attention to the sparks from the engine, and to this ruling of the court the defendant excepted. The witness Garner was then asked the following question: "State whether or not you ever saw other engines in operation on this or other railroads, and other sparks at other times from other engines." The defendant objected to this question, because it was illegal, immaterial, and incompetent. The court overruled the objection, and admitted the question, in order that the witness might show whether the rush of sparks was unusual or not, and his knowledge of what unusual might appear, and to this ruling the defendant duly excepted. The witness answered that he had, and upon the court's overruling the defendant's motion to exclude this answer, the defendant duly excepted. These last two rulings constitute the bases of the second and third assignments of error. Upon the introduction of Georgia Farrier, as a witness for the plaintiff, and after she had testified to the burning of the plaintiff's house, and that it was about quarter of an hour after the last train went by on the defendant's road before the fire, the witness saw the house on fire, the witness was then asked the following question: "Whether or not she had known of other fires in the neighborhood being set by passing engines on the defendant's road." To which the defendant objected, because it called for evidence that was irrelevant, incompetent, and illegal, because it did not show like engines to the one alleged to have caused the fire. The court overruled the objection, and the defendant excepted. The witness answered "that she had; that a passing engine had once set fire at Charles Yarbrough's." The court then asked the witness when this was, and how long it was before this time, to which she replied, "About one year before." Thereupon the court ruled that it was too remote, and excluded the testimony as to previous fires from the jury; but subsequently, when defendant's witness Wheeler had stated that the Louisville & Nashville Railroad Company had, for more than a year before this fire, used engines of like construction, and with like appliances to prevent the escape of fire, as the one that passed plaintiff's house on the occasion of this fire, and that it was impossible for engines of that construction and same appliances to set fire to anything along its track, the court then stated that it would "admit the testimony excluded, in contradiction of Wheeler's statement." And to this ruling of the court the defendant objected, on the grounds that such evidence was irrelevant, immaterial, and illegal, which objection was overruled, and defendant excepted. The other rulings of the court upon the evidence are sufficiently stated in the opinion.
Upon the introduction of all the evidence, the court at the request of the plaintiff's, gave to the jury the following written charges, to the giving of each of which the defendant separately excepted: (1) "If you find that the locomotive, in passing the house of the plaintiff, threw out or emitted sparks and fire in unusual, extraordinary, or dangerous quantities, and thereby set fire to the house at a distance from the track of about 64 feet, and if you further find, from the evidence, that a properly constructed and operated engine could not or should not emit such burning sparks, and propel them for such a distance, you may find for the plaintiff, although the evidence of the fireman and the engineer was that the locomotive and management was perfect and skillful." (2) "The law is, gentlemen, when the plaintiff introduces evidence tending to show that the fire originated by sparks and fire emitted from the defendant's engine in unusual and dangerous quantities then the burden is cast upon the defendant to show proper construction, appliances, and management of its engine; and, despite the fact that defendant introduces evidence of proper construction, appliances, and management of its engine, it still remains a question for the jury to determine, from all the evidence in the case, whether or not the fire did originate by the emission of fire and sparks from defendant's engines in unusual and dangerous quantities, and whether the construction and appliances and management of its engines were proper; and if you find that the fire did so originate, and that such construction, appliances, and management were improper, then you are authorized to find for the plaintiff." The defendant also separately excepted to the court's refusal to give the following written charges requested by it: (9) "If the jury believe the evidence, they will find for the defendant." (10) "If the jury believe the evidence, they will find for the defendant; if they do not believe the evidence, they will find for the defendant." (11) "If you do not believe the evidence, gentlemen, you will find for the defendant." (13) "The fact, if you believe it to be a fact, that fire was discovered soon after the passage of one of defendant's engines, raised no presumption that said fire was originated by sparks escaping from said engine." (14) "I charge you, gentlemen, as matter of law, that the mere fact that, the fire originated from sparks emitted from an engine is not sufficient to fasten a liability upon the railroad company." (15) (16) "Under the evidence in this case, I charge you that the engine was properly handled and equipped; and, if you believe the evidence, your verdict should be for the defendant." (17) "If you believe, from the evidence, that the house of plaintiff was so situated on the east side of the railroad, and that at the time of the passage of defendant's train the wind was blowing from the east or southeast, I charge you that it would have been a physical impossibility for...
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