Louisville & N.R. Co. v. Marbury Lumber Co.

• Decision Date: 28 June 1902
• Citation: 132 Ala. 520,32 So. 745
• Parties: LOUISVILLE & N. R. CO. v. MARBURY LUMBER CO.
• Court: Alabama Supreme Court

32 So. 745

132 Ala. 520

LOUISVILLE & N. R. CO. v. MARBURY LUMBER CO.

Supreme Court of Alabama

June 28, 1902

Appeal from circuit court, Autauga county; W. D. Denson, Judge.

Action by the Marbury Lumber Company against the Louisville &amp Nashville Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

The defendant pleaded the general issue and contributory negligence. The assignments of error were based upon the evidence and upon the refusal to give the charges requested by the defendant. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

The defendant requested the court to give to the jury the following written charges, and separately excepted to the refusal to give them as asked: "(B) The court charges the jury that the plaintiff having failed to show the velocity of the wind or the condition of the atmosphere, the jury cannot infer from the fact of the fire, that the defendant was guilty of negligence." "(O) The testimony of Engineer Woods that when the engine passed the cotton pen it was handled in a careful and skillful manner is uncontradicted." "(L) The court charges the jury that evidence which merely tends to show that the cotton was fired by sparks escaping from the engine, does not cast on the defendant the burden of showing that the engine was properly equipped with the appliances for the prevention of escaping sparks, in use on the best equipped railroads, and was carefully and prudently managed." "(K) The burden is on the plaintiff, under evidence in this case, to show some positive act of negligence on the part of the defendant in the equipment or management or condition of engine at the time of the fire." "(C) The court charges the jury that there is no evidence in this case of any unusual fall of sparks at or opposite the place where the cotton was stored." "(N) I charge you, gentlemen of the jury, as matter of law that the mere fact that the fire originated from sparks emitted from an engine is not sufficient to cast the burden on the defendant to show that its engine was properly equipped and carefully and skillfully managed."

There were verdict and judgment for the plaintiff, assessing its damages at $2,678.66. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Thos G. & Chas. P. Jones and Alex C. Birch, forappellant. Watts Troy & Caffey, for appellee.

HARALSON J.

1. The principle is well established in this court as a rule of evidence, that in an action against a railroad company to recover damages resulting from fire alleged to have been caused by the negligent escape of sparks from a locomotive running on defendant's road, the burden is on the plaintiff, in the first instance, to show, that the fire was caused by sparks emitted from defendant's locomotive, and when it is shown that the fire was thus caused, which is, when disputed, always a question of fact for the jury, the mere communication of the fire from the railroad engine, is of itself sufficient to raise a presumption of negligence against the company. With this prima facie proof of defendant's liability raised in plaintiff's favor, the burden is then devolved upon the defendant, of showing that the engine alleged to have caused the fire was properly constructed, was equipped with approved devices and appliances to prevent the escape of fire and sparks, was in good repair and prudently managed and controlled; and upon proof of these facts by the defendant, the presumption arising from the mere communication of fire from the engine is rebutted, and the plaintiff cannot recover, without making proof of other specific acts of negligence or want of care on defendant's part. Railroad Co. v. Reese, 85 Ala. 497, 5 So. 283, 7 Am. St. Rep. 66; Louisville & N. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 So. 438, 50 L. R. A. 620.

2. The cotton destroyed was situated in a pen on the right hand or north side of the railroad running towards Birmingham from Montgomery, at which point, it appears the track ran east and west. The pen was about 50 feet 6 inches from the center of the track. A freight train had, only a few minutes before passed up, when the cotton was discovered to be on fire. The train, as the evidence tended to show, was a short one, consisting of about 15 cars attached to the engine, the grade was ascending at the point, the train was moving rapidly, and the engine was emitting an unusual quantity of sparks, larger than engines generally emit; that the day was clear and rather windy, the wind blowing in the direction of the cotton,--from a southeastern direction and in a northwesterly direction, and there was no fire in any of the houses or structures near the cotton. Here, the witness testifying to these facts for plaintiff, was asked, "Had it been raining the day before the accident, or had it been dry weather?" to which question, he replied, that the weather had been clear for several days. The defendant objected to the question, on the ground that it was irrelevant, incompetent and inadmissible, shedding no light as to what condition the engine was in. The objection was properly overruled. The burden was on the plaintiff, to introduce evidence, to show that the fire originated from the passing engine, and any circumstance tending to show that it did thus originate, was competent. The proof of how...