Louisville & N.R. Co. v. Sullivan Timber Co.

• Decision Date: 03 April 1900
• Citation: 27 So. 760,126 Ala. 95
• Parties: LOUISVILLE & N. R. CO. v. SULLIVAN TIMBER CO.
• Court: Alabama Supreme Court

27 So. 760

126 Ala. 95

LOUISVILLE & N. R. CO. v. SULLIVAN TIMBER CO.

Supreme Court of Alabama

April 3, 1900

Appeal from circuit court, Mobile county; William S. Anderson Judge.

Action by the Sullivan Timber Company against the Louisville &amp Nashville Railroad Company for negligently causing damage to property by fire. From an order setting aside a verdict for defendant, and granting plaintiff a new trial, defendant appeals. Affirmed.

This action was brought by the appellee, the Sullivan Timber Company, against the Louisville & Nashville Railroad Company to recover damages for burning the plaintiff's property which was alleged to have been caused by fire which was started by sparks emitted from one of the defendant's locomotives while being run along its road. The complaint, as amended, contained five counts. The first, second, fourth and fifth counts alleged that the fire caught in hay, dry grass, weeds, or other combustible material, which was left by the employés of the defendant along its right of way, and that the fire so started was communicated to the plaintiff's premises. The third count alleges that the sparks emitted by the defendant's locomotive fell on the plaintiff's premises, and caused the fire resulting in the damages complained of. The defendant pleaded the general issue and contributory negligence. It was shown by the evidence that the plaintiff owned a sawmill plant, which was located along the line of the defendant's road; that one of the houses of said plant was situated only a short distance from the defendant's main track; that there was attached to this house a shed, which was on the side of the house nearest to the defendant's road; and that the fire which resulted in the destruction of the plaintiff's plant was commenced in this shed. The evidence for the plaintiff tended to show that the section hands of the defendant had cut the grass and weeds from along the defendant's right of way, and had left them in piles at some portions of the right of way near to the plaintiff's property, and that in other places the grass was left where it was cut; that on the day the fire occurred a passenger train operated by the defendant company passed by the plaintiff's plant; that the engine drawing said train emitted large sparks; and that, 10 or 15 minutes after the train passed the plaintiff's premises, fire was discovered, which resulted in the destruction of the property. There was some tendency of the plaintiff's evidence going to show that these sparks that were emitted from the defendant's locomotive fell in the grass or hay, which was ignited, and in that way the fire was communicated to the plaintiff's shed, while other testimony of the plaintiff tended to show that the sparks were so large that in falling upon the roof of said shed they caused the shed to take fire, which was communicated to the rest of the plant. The evidence for the defendant tended to show that a short time prior to the burning of the plaintiff's property the plaintiff caused to be thrown down an old shed, and rebuilt the one where the fire was shown to have started; that in tearing down the old shed the pieces of timber and shingles were thrown by the carpenters between the shed and the railroad, and many of such pieces of timber, shingles, and splinters, resulting from splitting the boards and shingles, were left there; and that, if any fire originated from sparks emitted by the defendant's engines, it was communicated to the plaintiff's property by means of the pieces of timber, shingles, and splinters which were left lying near the shed. The defendant introduced the engineer who was operating the locomotive that passed the plaintiff's plant a few moments before the fire, and other witnesses, who testified that said engine was equipped with all the latest improved machinery, that it was examined just before being run out of the shop on the day in question, and that the spark arrester was in good condition and of the best pattern. There were other witnesses introduced for the defendant, who testified that the sparks emitted from the engine at the time and place in question were not sufficient to ignite any combustible material, or to have caused the fire resulting in the injury complained of by the plaintiff. The defendant did not introduce as a witness the fireman who was on the engine that passed the plaintiff's plant a few moments before the conflagration.

Upon the introduction of all the evidence, the court, at the request of the defendant, gave to the jury the several written charges which are stated in the motion for a new trial, hereinafter set forth. There was verdict for the defendant. Thereupon the plaintiff moved the court for a new trial upon the following grounds: "(1) The verdict is contrary to the evidence. (2) The verdict is contrary to the law and the evidence. (3) The court erred in charging the jury at the request of the defendant as follows: 'The court has given you several charges to the effect that under certain circumstances the burden is thrown upon defendant to prove that the fire was not caused by sparks from its engine but it does not mean thereby to charge you that if defendant, under such circumstances, fails to show that the fire was not caused by sparks from its engine, you would be justified in finding a verdict for plaintiff. That is not the law.' (4) The court erred also in charging the jury at the request of defendant as follows: 'The court charges the jury that if they believe from the evidence that a carpenter employed by the plaintiff to reshingle its shed, in doing so, threw shingles, or pieces of shingles, into the street, or placed other combustible material therein, and that the defendant placed hay, dry grass, weeds, or other combustible material in the street, and that one of defendant's engines threw out sparks and set on fire the hay, dry grass, and other material placed in the street by defendant, and that the shingles and other material placed in the street by the carpenter added to the extent of the fire, and aided in communicating it to plaintiff's shed, then the jury ought to find a verdict for the defendant.' (5) Also, in charging the jury at defendant's request as follows: 'The jury has no right to surmise or speculate, independent of the evidence, as to how the fire arose, or as to how it was communicated to plaintiff's property, and then base their verdict thereon. Before they can find a verdict for the plaintiff, the evidence must satisfy them that the fire arose from a spark thrown out by defendant's engine, and was communicated to plaintiff's...