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

• Decision Date: 12 November 1903
• Citation: 138 Ala. 379,35 So. 327
• Parties: LOUISVILLE & N. R. CO. v. SULLIVAN TIMBER CO.
• Court: Alabama Supreme Court

35 So. 327

138 Ala. 379

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

Supreme Court of Alabama

November 12, 1903

Appeal from Circuit Court, Mobile County; Wm. S. Anderson, Judge.

Action by the Sullivan Timber Company against the Louisville &amp Nashville Railroad Company. From a judgment for plaintiff defendant appeals. Reversed.

It was shown by the evidence that the sawmill, lumber, lumber sheds etc., owned by the plaintiff, and located on the east side of Water street, in the city of Mobile, just south of Texas street, was totally destroyed by fire on September 29, 1896 that on said day one of defendant's trains passed plaintiff's property running at a rate of speed variously estimated by witnesses at from 12 to 25 miles an hour, and that a short time after the train passed, the plaintiff's property was discovered to be on fire; that the origin of the fire was variously located, but always some distance from a switch light or post which was on the defendant's road in Water street. There was evidence tending to show that the defendant's employés, some days prior to the fire, had cut down grass and weeds between its track and plaintiff's shed, and left the grass and weeds lying where they were cut. There was also evidence tending to show that near the switch post the defendant's employés had thrown some waste or packing used for cleaning the switch lamp, etc., which was saturated with oil. There was evidence further tending to show that 15 or 20 minutes after a train of the defendant passed the plaintiff's property fire broke out and was discovered to be on the outside of the shed next to the railroad track; that there was also discovered fire in the trash on the ground outside the shed; that fire broke out first in the roof of the shed; that nothing was stored under the shed at the place where the fire was started; that at the time the fire was started the wind was blowing strong from the northwest. The defendant introduced witnesses who testified that they were between the track and the shed after the fire commenced, and that there was no fire west of the shed. The defendant's evidence also tended to show that the fire originated either inside or on top of the shed. One of the defendant's witnesses, who had on that day and before the fire inspected this engine from which it is alleged the sparks causing the fire had escaped, testified that the engine was in first-class condition, and had the standard spark arrester, and that it was impossible for sparks large enough to set out a fire to escape from that engine that day; that said engine and train was properly handled that day; that a train going at the rate of 20 miles an hour would throw out more sparks than when going at 8 miles an hour. Defendant's engineer who had charge of this engine on that day testified that in passing appellee's property that day the train "was going at from ten to twelve miles an hour, and that the engine was not throwing out an unusual quantity of sparks; that more sparks are thrown out when going at twenty miles an hour than when going at eight miles an hour; the higher the rate of speed the more sparks the engine will throw out." The city ordinance adopted in 1891 prohibited railroad trains to run within the city limits at a greater rate of speed than eight miles an hour.

Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave to the jury the following written charges: "(1) Although a railroad company has the right to use fire in generating steam, yet if, by negligence in the condition of its property which contributed to the damage by reason of such fire, such railroad is liable for any damage that may so result. (2) A railroad has a right to use its property in the running of its trains. It has also the right to use fire to generate steam for the purpose of running its trains. But, while this is true, I charge you that the railroad company must so use its property and the fire necessary for the generating of steam in such a manner as to prevent injury to adjoining property, if it can reasonably do so. (3) If the jury believe from the evidence that the fire was caused by sparks from the engine of the railroad company igniting grass or combustible material on its right of way, then, though they should further find that the engine was properly equipped, and was in all respects properly managed, should the proof reasonably satisfy the jury that the railroad company failed to keep its right of way clear of grass, weeds, and combustible material likely to be ignited by sparks, this fact, if it be a fact, will make the defendant liable for the damage resulting from the fire. (4) If it be a fact shown in this case that the railroad company permitted any grass and other combustible materials to be and remain on its right of way liable to be ignited by sparks from its engine, then I charge you that this fact may be looked to by the jury to determine whether the railroad company was guilty of negligence. (5) If it be a fact shown in this case that the railroad company permitted dry grass and weeds to be and remain on its right of way, liable to be ignited by sparks from its engine, then I charge you that this was negligence in the company." "(8) If the jury find that a locomotive of the defendant, in passing plaintiff's premises, threw out or emitted sparks and fire in dangerous quantities, and thereby set fire to plaintiff's property at a distance from defendant's railroad track of about 28 feet; and if you further find from the evidence that a properly constructed and operated engine could not or should not emit such burning sparks, and propel them for such a distance--then you may find for the plaintiff, although the evidence of defendant's witnesses may tend to show that the locomotive was perfect, and its management skillful. (9) If the jury believe that the fire was caused by sparks and fire emitted from the defendant's engine in dangerous quantities, then the burden is cast upon the defendant to show proper construction, appliances, and management of the engine; and despite the fact that defendant introduces evidence of proper construction, appliances, and management of its engine, it still remains a question for the jury to determine from all the evidence in the case whether or not the fire did originate by the emission of fire and sparks from defendant's engine in dangerous quantities, and whether the construction and appliances and management of its engine were proper; and, if the jury find that the fire did so originate, and that such construction, appliances, and management were improper, then they are authorized to find for the plaintiff, unless the evidence shows that the plaintiff's own negligence contributed to cause the fire." "(11) That the owner of property near to a railroad track is not compelled to keep his property in such a condition as to guard against the negligence of the railroad company. (12) That contributory negligence of the plaintiff, in order to defeat a recovery, must be such as contributed as a proximate cause to the occurrences from which the damage arose, and it must be the negligence of the plaintiff, its agents, servants, or employés, and not that of a third person; and the burden of proof is on the defendant to prove it. (13) That, to charge the plaintiff with contributory negligence under the pleas in this case, the defendant must reasonably satisfy the jury by the evidence that there was a public street in front of plaintiff's property at the point where the fire originated, and that the plaintiff, through its agents and servants, negligently threw inflammable material into such street, and near to plaintiff's shed abutting on the edge of such street, and that the throwing of such material into such street proximately concurred in causing the fire or the spread of the fire to plaintiff's property, and which produced the destruction thereof, and that the burden of proof is on the defendant to show such contributory negligence. (14) That although, if the jury should believe that there was a public street in front of plaintiff's property at the point where the fire originated, still the plaintiff is not charged with the duty of keeping such street in good condition, or free from trash and combustible material; that if it be a fact that there was a street there, and that there was trash and combustible material in it, but not placed there by plaintiff or its agents, servants, or employés, this would not constitute contributory negligence, so as to prevent plaintiff from recovering; that contributory negligence to prevent recovery must be some omission of duty which the plaintiff was compelled to perform, or some act by it concurring in the destruction of its property. (15) If the jury believe from the evidence that there was an open space of ground about 28 feet in width between plaintiff's shed that it was claimed was set on fire and defendant's railroad track, and that there were weeds and grass growing on said space of ground, and that defendant had said grass and weeds cut down a few days before the alleged fire occurred, and left them lying on the ground where they had been cut; and if the weather was then dry and warm, and such grass and weeds had become dry and inflammable, and liable to catch on fire from fire from defendant's locomotive--then it was negligence in defendant to leave such dry grass and weeds so lying on the ground. (16) If the jury believe from the evidence that a steam locomotive and train of defendant passed by plaintiff's premises just before the alleged fire started which it is claimed destroyed plaintiff's property, and if said locomotive was being run at the time at a greater rate of speed than is prescribed in the city ordinance which is in evidence,...