Martin v. McCrary
| Decision Date | 07 October 1905 |
| Parties | MARTIN et al. v. McCRARY et al. |
| Court | Tennessee Supreme Court |
Appeal from Circuit Court, Monroe County; George L. Burke, Judge.
Action by Harle Martin and others against G. D. McCrary and others. From a judgment in favor of the latter, the former appeal. Reversed.
Action by the owner of a wheat crop against the owner of a steam thresher for negligently setting fire to the wheat in the stack by means of sparks emitted from the engine, whereby the crop was destroyed.
The case was tried before the circuit judge without the intervention of a jury, with the result that he dismissed the plaintiffs' case and rendered judgment against them for the costs of suit. From this judgment they have prosecuted a writ of error, also an appeal, and assigned errors.
The circuit judge was requested, under the statute, to make written findings of fact and law, and he did so.
The facts found, so far as material, were as follows:
The defendants, having contracted to thresh plaintiffs' wheat, set their steam thresher at plaintiffs' stacks and were engaged in threshing the grain, when a spark from the engine fell upon and set fire to a wheat stack, and destroyed the entire crop, to the value of $166.75. This occurred July 22, 1904.
The spark arrester on the engine "was of the kind generally in use." However, some time prior to the beginning of the season for threshing wheat, defendants were using this engine in running a sawmill, and, while so using it, they, as a matter of precaution, inserted an inner screen under the spark arrester, composed of fine wire netting. This fine inner netting was resupplied to the engine from time to time, and had been thus replaced two or three times prior to the date of the fire in question. It is not customary, however, to use this fine netting. The evidence failed to show that it had ever been used in this manner by any one other than the defendants.
On the day the fire occurred, and after the fire, an examination of the engine disclosed that there was a hole in the fine under netting, but none was seen in the spark arrester itself, and it was not deficient.
Defendants examined the spark arrester and the fine wire screen under it a day and a half before the fire occurred, and at that time there was no hole in either of them.
No evidence was introduced showing that the engine in question emitted sparks more copiously "than was natural for any engine of similar kind and character."
When the fire occurred the engine was running with the damper slightly up, but it was necessary to give it some draft to enable it to run at all.
Defendant Peoples was with the engine at the time of the fire, but neither he nor any of his employés or servants had knowledge of the hole in the fine netting at the time.
His honor added the following general findings upon the subject of negligence, viz.:
Young & Young, for plaintiffs. McCroskey & Peace, for defendants.
NEIL, J. (after stating the facts).
The degree of care required by one threshing wheat with a steam thresher, in respect of setting fires, is the same as...
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