McGill Bros. v. Seaboard Air Line Ry.

• Citation: 69 S.E. 156,87 S.C. 178
• Parties: McGILL BROS. v. SEABOARD AIR LINE RY. [D1] CONNOR v. SAME (two cases).
• Decision Date: 27 October 1910
• Court: United States State Supreme Court of South Carolina

69 S.E. 156

87 S.C. 178

McGILL BROS. v. SEABOARD AIR LINE RY. ^[D1]

CONNOR v. SAME (two cases).

Supreme Court of South Carolina

October 27, 1910

Appeal from Common Pleas Circuit Court of Lexington County; Geo. E Prince, Judge.

Actions by McGill Bros. and by James W. Connor, individually, and by him as administrator, against the Seaboard Air Line Railway. From a judgment for defendant in each action, plaintiff in each action appeals. Affirmed.

John T Seibels and T. C. Sturkie, for appellants. Lyles & Lyles and Efird & Dreher, for respondent.

WOODS J.

In these actions for the recovery of damages for injury to land caused by a fire alleged to have been set out by sparks from one of defendant's locomotives, the verdict was for the defendant. The actions being under section 2135 of the Civil Code of 1902, which makes railroad companies liable for damages from fire communicated by their locomotive engines without respect to negligence, the main issue was as to the origin of the fire. On the part of the plaintiffs there was evidence that the fire started near the railroad track soon after a locomotive had passed. The defendant introduced evidence tending to show that the woodlands of the plaintiffs might have caught fire from an old tree burning near by.

The exceptions assign error in the exclusion of the following question asked by plaintiffs' counsel of the witness Gardener: "Had you seen the engines of the defendant company set out fires along there before?" The rule of evidence adopted by the courts with practical unanimity in cases like this is that on the issue of the origin of the fire evidence of other fires communicated by other locomotives of the defendant company under similar conditions and at or near the same time is admissible as tending to show a probability that the fire under investigation was set out in the same way. Grand Trunk Ry. Co. v Richardson, 91 U.S. 454, 23 L.Ed. 356; Texas & Pac. Ry. Co. v. Watson, 190 U.S. 287, 23 S.Ct. 681, 47 L.Ed. 1057. The cases are collated in 33 Cyc. 1371, and 13 Am. & Eng. Ency. 515, and are too numerous for citation.

There is strong reason for holding that such evidence should not be admitted unless it appears to the court that the conditions and the time were approximately the same. Evidence that a locomotive hauling a heavy freight train upgrade emitted sparks and set fire to woods would not justify an inference that a passenger engine running downgrade would do the same thing. It is to be further observed that the changes in the construction and the fixture of locomotive engines are frequent, and hence it would not be fair to infer that an engine in use to-day probably set fire because engines in use 12 months before had done so. On this reasoning the conclusion of the court that there was no reversible error in excluding the testimony...