Payne v. Hargrove

• Decision Date: 21 April 1921
• Docket Number: 2 Div. 761
• Parties: PAYNE, Director General of Railroads, v. HARGROVE.
• Court: Alabama Supreme Court

89 So. 166

206 Ala. 69

PAYNE, Director General of Railroads, v. HARGROVE.

2 Div. 761

Supreme Court of Alabama

April 21, 1921

Rehearing Denied May 19, 1921

Appeal from Circuit Court, Bibb County; B.M. Miller, Judge.

Action by Andrew Hargrove against Walker D. Hines, as Director General of Railroads, with substitution of John Barton Payne as defendant, for damages for setting out fire through the operation of a locomotive. Judgment for the plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Reversed and remanded.

Foster Verner & Rice, of Tuscaloosa, for appellant.

Jerome T. Fuller, of Centerville, for appellee.

McCLELLAN J.

Action by appellee against appellant for damages alleged to have resulted from fire negligently communicated by a passing locomotive or locomotives (a "double-header") to a dwelling house owned by plaintiff, appellee, situated about 80 feet from the railway of the Mobile & Ohio Railroad Company near Brent, Ala.

There are two counts in the complaint. The first ascribed the damnifying result to this:

"*** The negligence or carelessness of the defendant in the operating, running, direction, or managing said locomotive or locomotives, or said steam engine or steam engines. ***"

The second count ascribes the damnifying result to this:

"*** Which fire was negligently or carelessly communicated to the said building by means of sparks cinders, or otherwise from one of the locomotives or engines on said date and occasion operated, run, directed, or managed along the line of railroad. ***"

The plea was the general issue.

It is manifest that the negligence charged in both counts is referred to the operation of the engine or engines as distinguished from the construction or equipment thereof--an important distinction pointed out in Tinney v. C. of Ga Ry. Co., 129 Ala. 523, 526, 527, 30 So. 623, and since recognized in A.G.S.R.R. Co. v. Loveman, 196 Ala. 683, 687, 688, 72 So. 311, Sou. Ry. Co. v. Shelton, 136 Ala. 191, 208, 34 So. 194, and Miller-Brent Lbr. Co. v. Douglas, 167 Ala. 286, 289, 290, 52 So. 414, among others. Under this interpretation of the counts, evidence of the character and quality of the construction or equipment of these locomotives (Nos. 147 and 150) on this occasion, with a view to arresting the escape of sparks therefrom, would have been inadmissible on proper objection, had objection been made. Nevertheless the substance of the question was later raised and reserved by the general affirmative charge requested and refused to defendant (see Tinney's Case, supra), which ruling is assigned for error on this appeal. The proposition was evidently in the mind of counsel when charge 2 was requested for defendant; but the court cannot be held to have erred in refusing this request 2 for the reason that it would have required the plaintiff to establish "negligent operation" of both locomotives, whereas the counts alternately ascribed the negligence averred to one of the locomotives.

In the Tinney Case, supra, it was said:

"Assuming, therefore, that the evidence showed that the property was burned by sparks from the engine, and accommodating the prima facie presumption [there fully defined] that these sparks were emitted because of improper operation of the train or want of proper condition or equipment of the engine, plaintiff's case as laid in her complaint was still not made out; and the court properly gave the affirmative charge for the defendant."

Such is the...