Norfolk & W. R. Co v. Bohannan Et Ux

• Decision Date: 16 August 1888
• Citation: 85 Va. 293,7 S.E. 236
• Court: Virginia Supreme Court
• Parties: Norfolk & W. R. Co. v. Bohannan et ux.

7 S.E. 236

(85 Va. 293)

Norfolk & W. R. Co.

v.Bohannan et ux.

Supreme Court of Appeals of Virginia.

August 16, 1888.

1. Railroad Companies—Negligence—Fires—Sufficiency of Evidence.

In an action against a railroad company for two fires, one of which was alleged to have been caused by sparks cast from defendant's engine upon plaintiff's premises, and the other upon combustibles on defendant's right of way, there was testimony that, soon after a train had passed, smoke was seen in plaintiff's orchard, and that the fire had started on the line between plaintiff's and the company's land, and was going away from the track. It was also testified that engines on that road sometimes threw sparks 40 feet beyond the right of way. It also appeared that after the second fire grass and weeds on the right of way were found partially burned. Held, that there was evidence to justify the jury' in finding that each fire was caused in the manner alleged.¹

2. Same—Trial—Instruction.

The parties not having attempted to ascertain the loss from the fires uDtil after the second fire, and defendant having omitted to examine the witnesses as to the amount of the separate losses, an instruction requiring the jury to find the amount of each loss separately was properly refused.

3. Same.

It was also proper io instruct the jury that they might consider all the evidence in the case, and assess the damages as a whole, whether the fire originated by sparks cast upon plaintiff's premises or by igniting combustibles on defendant's right of way.¹

4. Damages—To Property—Measure—Destruction of Fruit Trees.

In an action for the destruction of an orchard of fruit trees by fire, the measure of damages is not the cost of replacing the trees the first proper season for planting after the fire, and the value of the care and labor bestowed on the destroyed trees before the burning, with interest, but the value of the trees destroyed."

Error to circuit court, Pulaski county.

Action by R. D. Bohannan and wife against the Norfolk & Western Railroad Company for damages caused by Are ignited by a passing train. Judgment for plaintiffs, and defendant brings error.

Phlegar, Baskerville & Moore, for plaintiff in error. B. S. Peirce, for defendant in error.

Hinton, J. This is an action of tort to recover damages for a loss of property produced by fire communicated by passing trains. The declaration contains two counts. The first charges a loss occasioned by negligence in themanagement of a locomotive and the fire, and igneous matter therein, whereby sparks of fire, etc., were cast from the engine upon plaintiffs' premises, and their trees, fences, etc., were burned. The second count charges loss from a fire caused by the company's negligence in permitting combustible matter to accumulate on the right of way, which took fire and communicated it to the plaintiffs' premises. The defendant company demurred to the evidence, and, the jury having found a verdict for the plaintiff subject to the opinion of the court upon the demurrer to the evidence, the court gave judgment for $810, the amount of the corrected verdict, with interest thereon from the date of the finding; whereupon the company applied for and obtained this writ of error. The errors assigned are—First, the action of the court in rendering judgment upon the demurrer to evidence; second, the refusal of the court to give the instructions asked by the company, and the giving of another in lieu thereof; third, the action of the court in giving the instruction asked by the plaintiffs; and, fourth, the refusal of the court to set aside the verdict.

Now, it being manifest that if it was not error in the court to render judgment for the plaintiffs upon the demurrer to evidence, unless it ought to have set aside the verdict, these two objections may well be considered together. The rule upon a demurrer to evidence is that the demurrant is considered as admitting the truth of his adversary's evidence, and all just inferences that might be drawn therefrom by a jury, and as waiving all his evidence which conflicts with that of his adversary, and all inferences which do not necessarily result therefrom. See Creekmur v. Creekmur, 75 Va. 430. If, therefore, we look at the testimony in the light of this rule, it seems to us to be clear that neither of these objections can be sustained. The argument is that, in order to charge the company, it was necessary to show that one of the fires originated on the plaintiffs' premises from the negligent management of the engine, and that the other was caused by combustible material negligently permitted to be on the company's right of way. Assuming this to be so, the evidence before the jury was certainly sufficient to warrant them in finding for the plaintiffs both of these facts. As to the first fire, which occurred in the day-time, the testimony of Dr. W. H. Bramblett is that he left Pulaski city soon after the east-bound mail train had passed that place; that as he was leaving he saw smoke coming up from what he afterwards ascertained to be the plaintiff's orchard; that when he got to the orchard he found the fire had started on the bank of a railroad cut about the line of the company's and plaintiff's land, about 40 feet from the center of the railroad track, and had gone about 75 or 80 yards into the orchard; that the train had passed the point but a little while before he saw the smoke; and that the wind was from the south-east, and the fire spread north-west from the railroad through the orchard. This testimony establishes not only where the first fire was started, to-wit, on the dividing line between the company's right of way and the plaintiff's property, but it shows also the direction in which it was going, to-wit, away from the track. And this evidence, taken in consideration with the testimony...