Norfolk & W. Ry. Co v. Fritts

• Citation: 103 Va. 687,49 S.E. 971
• Court: Supreme Court of Virginia
• Decision Date: 09 March 1905
• Parties: NORFOLK & W. RY. CO. v. FRITTS.

49 S.E. 971

103 Va. 687

NORFOLK & W. RY. CO.

v.FRITTS.

Supreme Court of Appeals of Virginia.

March 9, 1905.

railroads—FIRES — NEGLIGENCE—EVIDENCE— QUESTION FOR JURY.

1. Where it is shown that a fire was set by a locomotive, the railway company is presumptively guilty of negligence, and it has the burden of proving that it used the best mechanical contrivances in known practical use to prevent the escape of fire, and exercised reasonable precaution in selecting competent employes and in operating its train.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1709-1711.]

2. A railway company, in regulating the speed of its trains, must consider the dryness of the season, the strength and direction of the wind, the danger to adjacent property, and the surrounding circumstances which increase the danger from fire thrown out by the engines; and a high rate of speed, when taken in connection with the circumstances, may be negligence.

3. Where, in an action against a railway company for the destruction of property by fire set by sparks from an engine, it was shown that a freight train too heavily loaded for one engine was drawn by two engines at double the speed of the schedule time and up a grade, that the engines emitted an unusual quantity of sparks, that the property destroyed was exposed to danger by reason of its nearness to the track, thedryness of the season, and the strong wind blowing directly to it from the passing engines, and it was not shown that the speed adopted, in view of the prevailing conditions, was a necessity to the railway service or a duty owed by the company to its patrons or the public, the question whether the company was guilty of actionable negligence was for the jury.

Error to Circuit Court, Warren County.

Action by R. S. Fritts against the Norfolk & Western Railway Company. Prom a judgment for plaintiff, defendant brings error. Affirmed.

Downing & Richards and Marshall McCormick, for plaintiff in error.

Scott & Staples, for defendant in error.

HARRISON, J. This action was brought to recover damages for the destruction of certain property of the plaintiff, alleged to have been caused by fire communicated from the engine or engines of the defendant company, in consequence of its negligent equipment, management, and operation of such engines.

There was a demurrer to the evidence of the plaintiff, and thereupon the jury assessed his damages at $2,306.70, subject to the opinion of the court upon the law. Upon consideration thereof, the learned judge of the circuit court overruled the demurrer, and gave judgment for the plaintiff in accordance with the verdict of the jury. From this judgment the case is before us for review.

No reasonable doubt can be entertained that the fire was set out by sparks from the engines of the defendant. Where this fact is established, the law is well settled that the railway company is presumptively chargeable with negligence, and must assume the burden of proving that it had availed itself of the best mechanical contrivances and inventions in known practical use to prevent the burning of property by. the escape of fire, and had exercised and observed every reasonable precaution in selecting competent employes and in operating its trains. Patteson v. C. & O. Ry. Co., 94 Va. 16, 26 S. E. 393; Kimball v. Borden, 95 Va. 203, 2S S. E. 207; White v. N. Y., etc., Ry. Co., 99 Va. 357, 38 S. E. 180.

Assuming that the defendant has shown that it had availed itself of the best mechanical contrivances to prevent the burning of property by the escape of fire, and had observed reasonable precaution in the selection of its employes, we come to the real question at issue—whether or not the defendant was guilty of negligence in its operation of the engines and train here involved.

It appears that the plaintiff, R. S. Fritts, was conducting a mercantile business at Success, a station on the line of the railroad of the defendant company, and that the buildings occupied by him for this purpose were wooden structures situated about 35 feet from the railroad track. The fire which destroyed these buildings and their contents occurred on March 20, 1902, at 1 o'clock in the daytime, it being a bright, warm day, and in the midst of a very dry season. At the hour mentioned, a freight train of the defendant, consisting of 30 cars, carrying 841 tons of freight, and drawn by two engines, passed Success going south. The schedule time allowed 15 miles an hour for the speed of the train. It was behind its schedule time, and endeavoring to make it up, and did make up five minutes between White Post and Riverton, a distance of 10 miles.

When the train passed the property of the plaintiff at Success, it was running upgrade at the rate of 30 miles an hour, double its schedule speed, and laboring very hard. The two engines were throwing out an unusual quantity of sparks and cinders, and there was a high wind blowing directly from the engines in the direction of the plaintiff's property.

The question presented is, would the jury, from the facts stated, have been justified in drawing the conclusion that the defendant company was operating its engines negligently?

The defendant insists that the speed of its train was not negligence per se, and that in regulating such speed it was under no obligation to take cognizance of the dryness of the season, the strength and direction of the wind, the danger to the plaintiff's...