Miller-Brent Lumber Co. v. Douglas

• Decision Date: 21 April 1910
• Citation: 52 So. 414,167 Ala. 286
• Parties: MILLER-BRENT LUMBER CO. v. DOUGLAS ET AL.
• Court: Alabama Supreme Court

52 So. 414

167 Ala. 286

MILLER-BRENT LUMBER CO. v. DOUGLAS ET AL.

Supreme Court of Alabama

April 21, 1910

Appeal from Circuit Court, Coffee County; H. A. Pearce, Judge.

Action by A. S. Douglas and another against the Miller-Brent Lumber Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

W. O Mulkey and J. F. Sanders, for appellant.

John H Wilkerson and Claude Riley, for appellees.

McCLELLAN J.

Action by appellee against appellant, for loss of property, by fire alleged to have been negligently communicated to a depot of the Louisville & Nashville Railroad Company, where it was for shipment, by a locomotive operated by appellant over the track of the Louisville & Nashville Railroad Company.

It is settled with us, by repeated decision, that, where fire is communicated to property from an operated locomotive, the burden of proof is upon the defendant to show, prima facie that the fire was thus communicated without negligence of the defendant in the construction, equipment, or operation of the locomotive. L. & N. R. R. v. Reese, 85 Ala. 497, 5 So. 283, 7 Am. St. Rep. 66; Sullivan Co. v. L. & N. R. R. Co., 50 So. 941; L. & N. R. R. Co. v. Sherrill, 152 Ala. 213, 44 So. 631 (treating charge 5, among others).

It was admitted, on the trial below, that the engine in this instance charged to have communicated the fire "was not equipped with proper spark arrester."

If the fire was communicated to the roof of the Louisville & Nashville Depot, at Pink, Ala., the defendant did not discharge the burden of proof resting on it to show, prima facie, that the fire's communication was not the result of its negligence. In such case, where the communication of the fire is shown, positively or circumstantially, the obligation is on the defendant to exclude, prima facie, the three means, viz., construction, equipment, and operation, by which the fire may have been negligently communicated to the property. So that, in this case, the chief question is: Was the fire, destroying appellee's property, communicated by defendant's locomotive?

When taken with the utmost favor for appellee, the evidence in this record is not sufficient, even circumstantially, to have required the submission of the stated inquiry to the jury. It was shown that "no one saw any sparks being emitted or thrown from the engine (defendant's) on this occasion." The evidence was in conflict on the issue whether steam was being "worked" when this engine passed the depot. If the engine was not under steam, all the witnesses testify that the emission of sparks was impossible; and, on the contrary, it seems to have been the theory that, if the engine was under steam, sparks might be emitted.

It may be granted that sparks may be emitted by an engine under steam; yet that, as is obvious, is, alone, far short of affording evidence, even inferentially, that in fact sparks were emitted. The possibility that a thing may occur is not alone, under any fair, reasonable deduction, evidence, even circumstantial, that the thing did, in fact, occur.

But it is insisted that the possibility stated is not the sole evidence of the asserted fact, viz., that sparks emitted from the engine ignited the roof of the depot. The supplementary evidence to support the asserted fact is said to be present in the evidence that the depot was discovered to be on fire, on the roof, on the side next the railroad, 20 or 30 minutes after this engine passed, and that a trash heap, about 15 feet from the track and north of the depot, was also discovered to be on fire a few minutes before the depot was discovered to be on fire, and that the trash pile was not on fire before the defendant's train passed, "nor was there any person standing near the trash pile from the time the train passed and until it was discovered to be on fire."

The cause of a known effect may be often ascertained, with reasonable certainty, by excluding other causes that may have produced the known effect; whereas, if such other causes are not excluded, the effect is ascribable, in point of fact, to many causes, and is, hence, incapable, for practical purposes of ascertainment, of definite ascription to any one cause. Such indefiniteness cannot lead to the certainty requisite to discharge a burden, in proof, to designate the cause. While not of course in immediate point, this underlying principle led the court to...