Louisville & N.R. Co. v. Smith

• Decision Date: 01 June 1909
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. SMITH.

50 So. 241

163 Ala. 141

LOUISVILLE & N. R. CO. v. SMITH.

Supreme Court of Alabama

June 1, 1909

Rehearing Denied June 30, 1909.

Appeal from Circuit Court, Conecuh County; J. C. Richardson, Judge.

Action by Irby T. Smith against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Anderson Denson, and McClellan, JJ., dissenting.

The complaint is in the following language:

Count 3: "Plaintiff claims of the defendant the further sum of $1,000 as damages, for that heretofore, to wit, April 27 1906, the defendant was running and operating a railroad through Evergreen, Ala., and was running and operating a locomotive thereon; that plaintiff owned 14 bales of cotton near to said railroad; that defendant negligently caused or allowed said cotton to be greatly damaged or destroyed by means of a fire communicated from or by means of said locomotive, all to the damage of plaintiff as aforesaid."

(4) "Plaintiff claims of the defendant the further sum of to wit, $1,000 damages, which damages were caused by fire from an engine operated by the defendant whereby said sum of to wit, $1,000 damages was caused by said defendant to the plaintiff by reason of said fire, whereby 14 bales of cotton were greatly damaged or destroyed, all caused by the negligence of the defendant, and by reason of said fire the plaintiff was damaged in said sum. Wherefore he brings this suit."

(5) "Plaintiff claims of the defendant the further sum of $1,000 as damages, for that on, to wit, the 27th day of April, 1906, the defendant was engaged in running or operating a steam engine or locomotive on defendant's track in Evergreen, Conecuh county, Ala., and that plaintiff owned 14 bales of cotton, which were situated on a platform adjoining the cotton warehouse in the town of Evergreen, known as the 'Evergreen Cotton Exchange,' which cotton was damaged or destroyed by the fire; and plaintiff alleges that said fire was communicated to said cotton upon said platform through the negligence of the defendant; and plaintiff avers that said cotton was of the value of $1,000, and that by reason of the said fire the plaintiff was injured as aforesaid."

(6) Same as 5, except that it is alleged that the fire was communicated to seven bales of cotton, situated on the platform, which cotton belonged to the defendant.

Demurrers were interposed, raising the question of misjoinder, and the other questions discussed in the opinion.

The following pleas were filed by the defendant:

"(2) For further answer to plaintiff's complaint as a whole, and each count thereof severally and separately, defendant says that the plaintiff was himself guilty of negligence which proximately contributed to the burning of his said cotton, in this: That the plaintiff placed or caused to be placed the cotton which was damaged or burned on an open platform, not the property of the defendant, which platform was within, to wit, 5 to 10 feet of the defendant's railroad track; that the defendant's trains, both freight and passenger, passed along said railroad track frequently each day and night, and said locomotives emitted sparks therefrom in dangerous quantities, all of which was known to the plaintiff; and, well knowing the above state of facts, the plaintiff permitted or allowed said cotton to remain upon the said platform unprotected and unguarded, and in this regard proximately contributed to the injury and damages set out in his complaint.

"(3) The defendant, for further answer to plaintiff's complaint as a whole, and each count thereof severally and separately, says that the plaintiff was himself guilty of negligence in this: That he permitted or allowed said cotton which is alleged to have been burned or damaged to be placed upon and remain upon, for a period of, to wit, 10 hours or more, a platform, which platform was not covered in any manner, which platform was within, to wit, 5 to 10 feet of defendant's railroad track, well knowing that said cotton was easily ignited, and well knowing that the said cotton was unprotected, and well knowing that the said platform was within, to wit, 5 to 10 feet of defendant's railroad track, and well knowing that the defendant ran and operated trains to which were attached locomotives, which locomotives were run by steam, and well knowing that steam is generated by fire from boiling water, and that in order to boil water it is necessary to use fire, and well knowing that the said locomotives emitted sparks in dangerous quantities, and that said cotton in its unprotected condition was liable to be set afire and burned by the said sparks, which negligence of the plaintiff proximately contributed to the injuries and damages set out in his complaint.

"(4) The defendant, for further answer to the plaintiff's complaint as a whole, and each count thereof severally and separately, says that the plaintiff was himself guilty of negligence in this: That he permitted or allowed the cotton which is alleged to have been burned or destroyed to be placed upon a platform, which platform is in close proximity to the defendant's railroad track, engines, or locomotives, and that said engines or locomotives emitted sparks in quantities sufficient to set said cotton on fire, and thereby proximately contributed to his own injury.

"(5) The defendant, for further answer to plaintiff's complaint as a whole, and each count thereof severally and separately, says that the plaintiff was himself guilty of negligence in this: That the plaintiff placed, or caused to be placed, the cotton which is alleged to have been burned or damaged on an open platform, which platform is not the property of the defendant; that the weather was very dry; that the defendant's locomotive engines passed along its railroad track in close proximity to the said platform every day, upon which said cotton was stored; that said cotton was not completely covered by bagging, but portions of it was absolutely uncovered and easily ignited; and that the said locomotive engines threw out sparks in dangerous quantities, the emission of said sparks being apparent--all of which facts were known to the plaintiff, and plaintiff negligently permitted and allowed the said cotton to remain on the said platform, and in this regard the plaintiff proximately contributed to his alleged damages as set out in his said complaint.

"(6) The defendant, for further answer to the plaintiff's complaint as a whole, and each count thereof severally and separately, says that the plaintiff was himself guilty of negligence in this: That he permitted or allowed the cotton which is alleged to havebeen burned to be placed upon an open and unprotected platform, which platform is within, to wit, 5 to 10 feet of the defendant's railroad track, and permitted or allowed said cotton to remain on said platform, unguarded and unprotected, for a period, to wit, 10 to 48 hours. At the point where the said platform is situated the defendant has a side track, along which side track the defendant's engines frequently pass in switching cars, which said engines throw out sparks in dangerous quantities--all of which facts above set out were well known to the plaintiff, and in this regard the plaintiff proximately contributed to the damages as set out in the said complaint."

410k252 Use of Documents, Maps, Plats, Diagrams, or Other Matters to Explain Testimony.

Where, in suit against a railroad for a fire, defendant's engineer testified as to proper equipment, construction, and operation of the engine, it was not improper cross-examination to exhibit a substance in nature of cinder or charcoal and question the witness with a view of eliciting testimony tending to show the spark arrester was faulty; witness having already testified to size of sparks emitted through a proper arrester.

George W. Jones and Rabb & Page, for appellant.

Hamilton & Crumpton and D. M. Powell, for appellee.

McCLELLAN J.

The cause of action relied on for a recovery is the negligent destruction of plaintiff's cotton by fire communicated thereto. The cotton was located on a platform very near the defendant's tracks in Evergreen.

The argument, based on the demurrers to the fourth, fifth, and sixth counts, cannot be sustained. The counts plainly impute the communication of the fire to the plaintiff's cotton in consequence of the negligence of the defendant. The further averment that the damage suffered by the plaintiff "by reason of said fire" took nothing from the antecedent allegation of negligent communication thereof to the plaintiff's cotton. In fact, under these counts of the complaint, there could have been no more apt description of the consequence of the alleged negligent communication of the fire than that employed. The negligence imputed is one thing, and the effect thereof, to plaintiff's damage, quite another. If "cause" and "effect" were the same thing, the argument indicated would be well taken. The ascription of the "cause" to the negligence of the defendant and the "effect" to the "said fire," communicated as averred, are not susceptible of the construction urged for appellant.

Counsel for appellant insist that count 3 stated no cause of action and that hence it was prejudicial error to refuse the affirmative charge requested by the defendant. The basis for the insistence is that count 3, omitting not presently important features, alleges: "That plaintiff owned 14 bales of cotton near to said railroad; that the defendant negligently caused or allowed said cotton to be greatly damaged or destroyed by means of fire communicated from or by means of said locomotives." It is urged that the alternative averment "caused or allowed" rendered the count equivocal within the principle...