McCary v. Alabama Great Southern R. Co.

• Decision Date: 24 April 1913
• Parties: McCARY v. ALABAMA GREAT SOUTHERN R. CO.
• Court: Alabama Supreme Court

62 So. 18

182 Ala. 597

McCARY v. ALABAMA GREAT SOUTHERN R. CO.

Supreme Court of Alabama

April 24, 1913

Rehearing Withdrawn May 17, 1913

Appeal from City Court of Birmingham; C.C. Nesmith, Judge.

Action by J.H. McCary, doing business, etc., against the Alabama Great Southern Railroad Company for damages for setting fire to his property. Judgment for defendant, and plaintiff appeals. Affirmed.

The facts sufficiently appear in the opinion.

Plea 3 is as follows: "That the injury complained of would not have happened but for the negligence of the agents or servants of the plaintiff acting within the line and scope of their authority, which proximately contributed thereto, and which said proximately contributory negligence consisted in this: That the servants or agents knew that an engine passing by said property of the plaintiff on the track of the defendant emitted sparks in unusual quantities, or of unusual size, which sparks fell upon or near the said property of the plaintiff, which fact was also known to said servants or agents of defendant, and the said servants or agents of defendant knew that said sparks would likely or probably cause the said property to burn, but nevertheless, with such knowledge, said servants or agents of the plaintiff negligently failed to extinguish the said sparks as they could have done, and the said sparks caused the said property of the plaintiff, as charged in said complaint."

The following charges were given for the defendant: (14) "The court charges the jury that the presumption of negligence on the part of the railroad company which arises from the mere fact that fire is started from the sparks of the engine is not a conclusive presumption, nor is it a strong presumption, but it is a weak and unsatisfactory presumption, and is indulged in merely for the purpose of putting the railroad company to proof, and compel it to explain and show with a reasonable and fair degree of certainty that it had performed its duty in regard to the equipment and management of its engine, and if the railroad company should show by proper plea that its engine was properly equipped and properly handled, it has overcome this prima facie presumption of negligence, and, without more, the plaintiff cannot recover." (14 1/2) "The rule of law is this: If the defendant shows that the engine alleged to have caused the fire was of proper construction, and equipped with proper devices and appliances to prevent the escape of fire and sparks, was in good repair, and prudently managed and controlled, the presumption of negligence arising from the mere communication of fire will be rebutted, and the plaintiff will not be entitled to recover." (11) "The defendant in this case is not liable for accidental injuries caused by the escape of fire from its engines, if the evidence shows that the engines were properly handled and properly equipped." (9) "If it be a fact, the mere fact that the property of the plaintiff was discovered to be on fire soon after the passage of one of defendant's engines raised no presumption that said fire had originated by sparks escaping from said engine." (13) "While the law is that, when a fire is proved to have been caused by fire escaping from an engine of a railroad company, the presumption of negligence arises, it is not a rule of liability, but only casts upon the defendant the burden of proof to show that its engines were properly equipped, and properly handled, and when the railroad company repels the inference of negligence by proof of the proper construction of its engines and the use of proper appliances and careful management, the plaintiff cannot recover in the action unless the plaintiff should reasonably satisfy the jury from the evidence of other negligence or want of care on the part of the railroad company." (7) "If you believe from the evidence that the engine was properly equipped with a spark arrester of approved utility, and that the engine was properly managed, then you must find a verdict for the defendant, even if you should be reasonably satisfied from all the evidence that the fire was caused by sparks from such engine." (12) "If you believe from the evidence that the engine of defendant was properly equipped and properly handled, then the defendant has discharged his duty and is not liable for the burning of the property of plaintiff, even if you should believe from the evidence that the engine set fire to the property as it passed." (36) "If you believe from the evidence that the spark arrester of defendant's engine 118 was properly equipped and in good condition, and that this engine was properly managed by competent employés in passing plaintiff's property, then you cannot find a verdict for plaintiff on account of any damage that may have been caused by sparks coming from or emitted by engine 118." (8) "The mere fact that a fire occurred, and that defendant's locomotive or engine passed at or about the time of the fire does not raise the presumption that the fire was caused by the defendant company, or that it was guilty of negligence in igniting or setting out said fire." (16) "Evidence which merely tends to show that the fire originated from the sparks from defendant's engine is not of itself sufficient to shift the burden of proof upon the defendant that its appliances for arresting sparks, and the manner of its train was free from negligence." (18) "If you are reasonably satisfied from all the evidence in this case that the watchman of plaintiff saw the engine pass by the factory of plaintiff on defendant's track, throwing sparks of unusual size or in unusual quantities, or of dangerous size, on or near the property of the plaintiff, and knew that such sparks would likely or probably set fire to such property, and could have extinguished such sparks, but negligently failed to do so, then you must find a verdict for defendant, if you are reasonably satisfied from the evidence that such sparks proximately caused the fire." (19) Same as 18, except it names two persons as watchmen or employés of plaintiff. (20) Same as 18 and 19. (30) "If there is any individual juror who is not reasonably satisfied from all the evidence in this case that plaintiff should recover, then you cannot find a verdict for the plaintiff." (40) "The defendant had a right to run its trains and engines, operated by steam, generated by fire, over its tracks at such rate of speed as was reasonably necessary to do its work, and to throw such sparks from such engines as may be necessary in such operation, provided the said engines are properly equipped and properly managed by competent servants."

The third count claimed damages for negligently setting fire to and burning a certain building which was leased and used by plaintiff as a manufacturing plant, and which said building was in possession of plaintiff on the day aforesaid.

The following charges were refused to plaintiff: A. "If you are reasonably satisfied from the evidence in this case that the plaintiff's factory was set on fire by sparks emitted from the engine of the defendant, and that said sparks were thrown about 125 feet to plaintiff's property, then you must find for the plaintiff." B. "If you find under the evidence, that sparks thrown from defendant's engine set fire to plaintiff's property and that said sparks were thrown 125 feet, the plaintiff is entitled to recover in this case."

Harsh Beddow & Fitts and L.J. Haley, all of Birmingham, for appellant.

A.G. &amp E.D. Smith, of Birmingham, for appellee.

DE GRAFFENRIED, J.

The plaintiff, J.H. McCary, had a manufacturing plant which was destroyed by fire. The plant was situated near the tracks of the defendant, the Alabama Great Southern Railroad Company. The fire occurred after 1 o'clock a.m. of November 12 1908, and before 4 o'clock a.m. of that day. The plaintiff, being of the opinion that his plant was set fire to by sparks emitted from a passing locomotive of the defendant and that the sparks were emitted by the locomotive either on account of its improper construction or equipment or on account of the negligent manner in which it was, at the time the sparks were emitted, handled by the servants of the defendant who had control of it, brought this suit against the defendant to recover the value of the property destroyed by the fire.

There was evidence on the part of the plaintiff tending to show that shortly before the fire was discovered a locomotive of the defendant passed the property; that the wind, at that time, was blowing from the direction of the defendant's tracks to the manufacturing plant; that the locomotive was at that time, emitting sparks of unusual size and in unusual quantities; and that many of the sparks fell a distance of 125 feet from the locomotive onto some of the inflammable portions of the defendant's plant. Some of the evidence of the plaintiff tended to show that, when the sparks fell upon the defendant's property as above stated, they were alive and of unusual size, and that some of the servants of the plaintiff stamped out such sparks as they saw fall upon the property. One of the witnesses testified, among other things, that: "I do not think there is an engine in existence but which will throw more or less live sparks. I will say that it is possible, but not probable, that an engine properly equipped with either of those standard fittings there will throw crowds of sparks and lumps of fire 125 feet away from the track on which it is running. The faster an engine is running the farther the sparks fly from the engine, not to the sides, but backwards. I do not think it would be possible for an engine properly equipped with that wire to throw live sparks and cinders 125 feet off to one side. If the wire was worn out that would make a...