McMillan v. Manistee Mill Co.
| Decision Date | 12 May 1909 |
| Citation | 49 So. 685,161 Ala. 169 |
| Parties | MCMILLAN v. MANISTEE MILL CO. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Conecuh County; J. C. Richardson, Judge.
Action by Henry McMillan against Vastine J. Hurlong, doing business as the Manistee Mill Company, for damages for the destruction of certain wood belonging to the plaintiff, alleged to have been caused by fire set out from sparks emitted from a locomotive engine being operated by the defendant. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
Charge 5, given for the defendant, was as follows: "The court charges the jury that if they are reasonably satisfied from the evidence that the defendant's engine was properly constructed, was in good repair, and properly handled managed, and controlled, that the defendant is not legally responsible for the fire which burned the plaintiff's wood."
Hamilton & Crumpton, for appellant.
H. H McClelland and Barnett & Bugg, for appellee.
Of the errors assigned on the record, only two are insisted on in argument. The first question urged and insisted on relates to the ruling of the trial court in the exclusion of evidence offered by the plaintiff, as to the action of the town authorities of the town of Repton, prohibiting the defendant from loading and unloading wood in the town on account of danger from fire incident to the emission of unusual quantities of sparks from defendant's engine. This evidence was clearly inadmissible. It was no more than a declaration by a third party, a stranger to the suit, that the defendant's engine was dangerous in the emission of unusual quantities of sparks.
The second question insisted on is based upon the assignment of error in the giving, at the request of the defendant, of charge 5. The facts hypothesized in this charge are insufficient to acquit the defendant of legal liability, in the operation of its locomotive, for damage to the property of plaintiff from fire caused by sparks from defendant's locomotive. This charge ignores the duty of providing suitable appliances for preventing the emission of sparks in dangerous and unusual size and quantity. On the authority of Horton v. L. & N. R. R. Co. (decided at the present term) 49 So. 423, we hold the charge bad, and that in the giving of it the court erred.
For this error, the judgment is reversed, and the cause remanded.
Reversed and remanded.
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