Louisville & N.R. Co. v. Davis

• Decision Date: 10 May 1917
• Docket Number: 6 Div. 321
• Citation: 200 Ala. 219,75 So. 977
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N.R. CO. v. DAVIS.

75 So. 977

200 Ala. 219

LOUISVILLE & N.R. CO. v. DAVIS.

6 Div. 321

Supreme Court of Alabama

May 10, 1917

Appeal from Circuit Court, Cullman County; R.C. Brickell, Judge.

Action by Arlethia F. Davis against the Louisville & Nashville Railroad Company for the destruction of property by fire. From a judgment for plaintiff, defendant appeals. Affirmed.

Somerville and Thomas, JJ., dissenting in part.

There are five counts in the complaint which charge generally that defendant negligently set fire to and destroyed plaintiff's house, and also specifically by the emission of sparks from a locomotive engine. Count 4 charges negligence in the erection, maintenance, and operation of a defective engine, and count 5 charges that the engine was not properly equipped with a spark arrester, or was negligently handled. Plaintiff's evidence tended to show that the fire was caused by sparks emitted from one of defendant's engines. Anticipating the defense of the proper construction equipment, repair, and operation of the engine, proof of all of which is made in due course by defendant, plaintiff undertook to show that the engine in question on this occasion emitted sparks unusual in size and quantity. The train was on a spur or side track which ran within 50 feet of plaintiff's house, and the engine was engaged in switching operations, and, according to some of the evidence it stalled opposite the house on a grade and on a curve, and the sparks were emitted in the effort, protracted for several minutes, to get the train in motion. This was about 10:30 p.m. Mrs. Duncan, a tenant of plaintiff, testified:

"I noticed the wheels would turn, but the train did not move, and unusual quantities of sparks would come out. They looked to me as large as a quarter, in unusual quantities and dry. I had seen trains pass up and down that track before but had not noticed sparks coming out of it so much as that night."

Plaintiff's witness Johnson, living next door to plaintiff's house and referring to the occasion, testified:

"I heard the sparks falling on the house I was in. They were different sizes, from a dime to the size of a quarter. It would emit large quantities, and they would go about 20 or 30 feet in the air."

This witness stated that he had seen other trains running, and emitting sparks at night, and that the engine in question emitted sparks in larger quantities than others he had seen. The question eliciting this statement was objected to on the ground of irrelevancy, and the objection and the motion to exclude the answer was severally overruled. Defendant's witness Wade, an expert engine inspector, stated on the cross-examination that an engine properly equipped with a spark arrester such as this engine had would not emit sparks as big as a quarter. He also testified that hot sparks had a tendency to expand after going through the meshes of the arrester, and that at night the glare of a hot spark gave it the appearance of being larger than it was.

Geo. H. Parker, of Cullman, and Eyster & Eyster, of Albany, for appellant.

F.E. St. John, of Cullman, for appellee.

SOMERVILLE J.

The evidence was sufficient to carry to the jury the question of the causation of the fire by...