Louisville & N.R. Co. v. Bouchard

• Decision Date: 17 December 1914
• Docket Number: 829
• Citation: 67 So. 265,190 Ala. 157
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N.R. CO. v. BOUCHARD.

67 So. 265

190 Ala. 157

LOUISVILLE & N.R. CO. v. BOUCHARD.

No. 829

Supreme Court of Alabama

December 17, 1914

Rehearing Denied Jan. 21, 1915

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by Robert E. Bouchard against the Louisville & Nashville Railroad Company for damages for setting out fire. Judgment for plaintiff, and defendant appeals. Affirmed.

Gregory L. & H.T. Smith and Joel W. Goldsby, all of Mobile, for appellant.

Gordon & Edington and Webb & McAlpine, all of Mobile, for appellee.

GARDNER J.

Suit was brought by appellee against appellant to recover damages for setting fire to his residence, barn, and storehouse with contents, and also one wagon. Upon the trial the issues of fact were presented to the jury and resulted in a judgment for the plaintiff, from which this appeal is prosecuted.

The first question to be considered is sufficiency of the evidence to justify a reasonable inference by the jury that the fire was in fact caused by one of the defendant's locomotives. Plaintiff testified in part as follows:

"That on and prior to the 29th day of May, 1913, he owned property situated at St. Elmo in the county of Mobile 230 feet south of the center of the defendant's railroad which runs at that point practically due east and west--a little northeast. That his property consisted of a barroom, a store, a residence, and a barn, and their contents. That the barroom was west of and adjoining the store, and the store was west of and adjoining the residence, and the barn southwest of the store. That defendant's depot was a little to the west of his buildings--northwest. That the west side of the depot was about 300 feet from his property. That the barroom was covered with tarred paper, which was old and had become fuzzy and inflammable. That about 2 o'clock a.m. plaintiff was awakened by the rapid blowing of the whistle of an approaching north-bound train, and put on his trousers and went out and found that the top of the barroom was on fire. That there was a strong wind blowing from the north--a little to the east--across the railroad track and towards his property. That the wind was blowing very nearly like it was blowing on the day on which the witness was testifying. That the weather was dry, and that there was no dew that night. That he did all that he could to save his property. That at the time that he got up the fire covered only a space two or three yards in diameter, and was reaching towards the roof of the store, but that there was no fire between the roof and the ground. That, after the fire was out, he went to the depot, and it was then between 2 and 3 o'clock. That he went all around the property, and that there was no fire on the outside of any of the buildings. That the buildings were all closed and securely fastened, and the fire was on top. That there had been a fire in the residence that night, but none in the store or barroom. That the store and dwelling were hardly two feet from the ground, and the barroom was right down on the ground. That there was never any fire in the barroom or wareroom that caught fire."

He was then asked the following question:

"Was there any fire in your particular neighborhood there from which this blaze caught? No, sir; it was too far off; there was no fire."

The witness further testified:

"That his property that was destroyed by fire was worth about $16,000, and he listed the property item by item, giving the value or loss by burning of each item; that the property figured over $15,000."

On further examination he stated that defendant's north-bound passenger train passed St. Elmo at 9 minutes after 1 o'clock in the morning; that the fire spread to the roof of the store and then to the residence; that the wind was blowing 10 or 15 miles an hour, and there was no fire at all between the ground and the roof; that the fire went straight on up the roof of the main store, and then over to the roof of the dwelling, and caught all the other buildings and burned them; that an engine threw sparks straight up, and the drift of the sparks is due to the wind; that he had seen sparks go up and fall a hundred feet from the train with an ordinary breeze of four or five miles an hour.

It was shown by testimony of Mrs. Sailor and her daughter Hazel Sailor: That they were both up when passenger train No. 2 of defendant passed their house on the morning of May 29, 1913, going north towards St. Elmo, and they learned of the fire that destroyed plaitiff's property the next morning after it occurred. That the train passed the house at 7 minutes after 1 o'clock according to Mrs. Sailor, and 9 minutes after 1 o'clock according to Miss Sailor, and was running from 35 to 40 miles an hour. Their house was on same side of the track as plaintiff's store (south), and was one mile (as stated in one part of her testimony) from St. Elmo, or one and a half miles as stated in another part. Mrs. Sailor stated she had frequently observed trains passing, her house being about 140 yards from the track. Her testimony shows that train No. 2 was a fast passenger train, and that she saw this train pass her house "that night," going towards St. Elmo, and indicated it was upgrade that direction. That it passed very rapidly, and was throwing sparks from the locomotive smokestack in larger quantities than usual. That train frequently threw out sparks in passing, out she had never seen a train throw them out in as large quantities, and that they looked to be from two to three inches in diameter. That some of the sparks thrown from the engine were carried 235 feet by the wind back on her place and set the grass on fire, and she picked up some cinders that had fallen in the grass "right where the fire started," and she produced these cinders, which were offered in evidence. That the weather was perfectly dry, and there was no dew, and "there was a pretty good wind blowing." That the sparks continued to fly from the engine as far as she could see them. There was a strip of timber between her place and St. Elmo, and, after the train passed this strip, she could see the sparks going up above the timber and could see them for a distance of about three-fourths of a mile. On cross-examination, she stated that the wind was strong and was blowing from the northeast, and the sparks were thrown 50 or 60 feet in the air and were blown back by the wind in a southeasterly direction into her field; that she measured from the spot where the locomotive was when it threw out the sparks to the place where the field caught, and it was 235 feet, but measured at right angles from the track it was 190 feet.

The witness Miss Hazel Sailor testified, in substance, as did her mother. She further stated that the "wind was blowing pretty nearly a gale--a heavy blow--from the northeast." Her testimony would rather indicate that the measurement made to ascertain the distance the sparks fell was at right angles and showed 235 feet, though we do not deem this at all of controlling importance.

Plaintiff also offered testimony of one Chessen, who testified: That "on the night plaintiff's property was burned he was 50 yards from defendant's track and about a mile west of St. Elmo." That he saw train No. 2 go by, and was running "pretty fast." "That she was throwing out a lot of sparks, more like a man with a shovel lifting them up and throwing them out of the smokestack. *** That after the train passed his house going towards St. Elmo, he could see her throwing sparks for about half a mile. That about half an hour after the train passed, he saw a fire at St. Elmo about as big as a barrel."

Plaintiff it is therefore seen, offered testimony to show the passage of fast passenger train No. 2, about 50 minutes before discovery of the fire; that the fire when discovered was on top of the shedroom or barroom adjoining the store, which was covered with tar paper that was old and had become fuzzy and inflammable; that there was no fire between the roof and the ground, no open doors, no probability of any cause for the fire in the surroundings; that it was perfectly dry and no dew and a strong wind, "pretty nearly a gale," as stated by a witness, from the north as shown by some of the witnesses, and a little northeast by others, but blowing in the direction from the track towards the property of plaintiff, and the emission from the engine of sparks of unusual size and in unusual quantities seen by some to a...