Muckenfuss v. Atlanta & C.A.L. Ry. Co.
| Decision Date | 05 July 1922 |
| Docket Number | 10914. |
| Citation | 113 S.E. 367,121 S.C. 110 |
| Parties | MUCKENFUSS ET AL. v. ATLANTA & C. A. L. RY. CO. ET AL. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Spartanburg County; Thomas S. Sease, Judge.
Action by W. G. Muckenfuss and others against the Atlanta & Charlotte Air Line Railway Company and another. From judgment for defendants, plaintiffs appeal. Affirmed.
S. G Finley, of Spartanburg, Stanyarne Wilson, of Richmond, Va and J. T. Seibels, of Columbia, for appellants.
Harry E. De Pass, of Spartanburg, for respondents.
Action for damages on account of the destruction by fire of a broom factory building and contents, alleged to have been caused by sparks from the engine of the railroad company. The plaintiffs are the owners of the property and certain insurance companies claiming to be subrogated to the extent of the policies paid by them. The case was tried before Judge Sease and a jury, and a verdict rendered in favor of the defendants. The plaintiffs have appealed.
It appears that at some time prior to February 8, 1906, Muckenfuss Manufacturing Company (a partnership, subsequently incorporated), erected a building for their factory within 38.6 feet of the defendants' main line. On that day, February 8, 1906, the railway company instituted an action in the court of common pleas for Spartanburg county to compel the removal of the building from their right of way. While this action was pending, on November 17, 1909, the building and contents were destroyed by fire. On November 24, 1911, the action referred to was terminated by the entry of judgment upon a consent decree, in which it was held to have been conceded by the Muckenfuss Company that the railway company was entitled to the unobstructed use of their right of way, and in which the Muckenfuss Company was enjoined from erecting any buildings, or otherwise obstructing the right of way, 100 feet from the center of the main line. The Muckenfuss Company thereafter reconstructed their factory outside of the 100-foot right of way. The building last referred to is not the one which was destroyed by fire on November 17, 1909, but the one erected outside the right of way in 1910, under a settlement confirmed by the decree entered November 24, 1911. The present action was commenced in February, 1913, and tried in June, 1917.
The complaint contains two causes of action: The first based upon section 3226, vol. 1, Code of Laws, A. D. 1912, which imposes liability upon a railroad company for property destroyed by fire, caused by sparks from an engine, regardless of the question of negligence on the part of the railroad company, and the other based upon the negligence of the railroad company in the construction and operation of its engines on account of which sparks were emitted which set fire to the building.
The exceptions raise the following questions:
(1) Did the circuit judge err in withdrawing the second cause of action from the jury and in charging them that there was no evidence of negligence to be submitted to them?
(2) Did the circuit judge err in charging the jury that the burden was upon the plaintiffs, in establishing their first cause of action, to prove that the building which was destroyed by fire was not placed upon the railroad company's right of way unlawfully or without its consent?
(3) Did the circuit Judge err in charging the jury that, even if the building was originally placed upon the right of way lawfully or with the consent of the railroad company, the plaintiffs could not recover if at the time of the fire the building was there unlawfully or without the consent of the railroad company?
(4) Did the circuit judge err in admitting in evidence the judgment roll in the case of Southern Railway Company against Muckenfuss Manufacturing Company?
As to the first question: The record is very clear that the plaintiffs in effect withdrew their second cause of action and elected to make the fight upon the first, which was easier to establish, as under the statute the question of negligence on the part of the railroad company is eliminated; the liability is absolute, without reference to that issue.
At the close of all the testimony, when the defendants moved to direct a verdict as to the second cause of action, the following took place:
"Counsel for plaintiff states: 'The first cause of action is the one we are relying on.' "
When the defense opened its argument to the jury, the following took place: "Mr. De Pass opened the argument for the defendant, and when he stated to the jury that he would first discuss with them the question of negligence as set up in the second cause of action, and then the question as to whether the sparks from the railroad set fire to the building under the first cause of action, Mr. Wilson arose and stated that it would be useless for counsel to argue the question of negligence with the jury, as set forth in the second cause of action, as the plaintiffs relied upon the first cause of action."
At the conclusion of the judge's charge, in which he had not charged the jury at all as to the second cause of action counsel for plaintiffs remarked to the judge: "You have covered our requests." Counsel for defendants then withdrew their requests relating to the second cause of action. If the counsel for plaintiffs intended to rely upon their second cause of action, if they had not already withdrawn it, it was incumbent upon them to call the omission and their contention to the court's attention. In view of this turn of the case it was entirely proper for the circuit...
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