Planters' Warehouse & Compress Co. v. Taylor

• Decision Date: 09 October 1897
• Citation: 42 S.W. 279,64 Ark. 307
• Parties: PLANTERS' WAREHOUSE & COMPRESS COMPANY v. TAYLOR. SAME v. HOPE CHRISTIAN CHURCH
• Court: Arkansas Supreme Court

42 S.W. 279

64 Ark. 307

PLANTERS' WAREHOUSE & COMPRESS COMPANY v. TAYLOR.

SAME v. HOPE CHRISTIAN CHURCH

Supreme Court of Arkansas

October 9, 1897

Appeal from Clark Circuit Court, RUFUS D. HEARN, Judge.

STATEMENT BY THE COURT.

The above-entitled actions were brought against the Planters' Warehouse & Compress Company to recover for damages alleged to have been caused by fire from sparks emitted from the smokestack of a cotton compress owned and operated by said company. Both cases rest upon substantially the same facts and by consent they were tried together in the circuit court before the same jury. On the trial the evidence was conflicting. Some of the evidence tended to support the contention that the fire which destroyed the church building of the Hope Christian Church and the dwelling house of Mrs Taylor was caused by sparks from the smokestack of the compress company, and, further, that the company was guilty of negligence in using a smokestack without sufficient safeguards to prevent the emission of sparks. On the other hand, there was evidence to the contrary, and tending to show that the fire was not caused by sparks from appellant's smokestack, or through its negligence. The smokestack of the compress company was about 200 feet distant from the church which first caught fire, and from which the fire spread directly to the house of Mrs. Taylor.

Among other instructions given, the court at the request of plaintiff instructed the jury as follows:

"No 4. If the jury find from the evidence that it was impossible for the compress company to prevent the emission of sparks from its smoke stack, which endangered adjacent property, after it had exhausted all known appliances to prevent the escape of sparks, then it was negligence to continue the operation of such property in such a place, and the defendant is liable for all damages resulting therefrom by fire." Appellant objected to the giving of this instruction, and, its objections being overruled, saved exceptions. There was a judgment for plaintiff in both cases.

Judgment reversed and cause remanded for new trial.

Greene & Hervey, for appellants.

There is no evidence that the fire was caused by sparks from appellant's smokestack. 38 Pac, 425; 50 N.W. 730. Appellants are held to the exercise of only ordinary care in the selection of apparatus and management of business. Negligence must be proved, to make them liable. Cases supra; 13 N.W. 500; 28 Mich. 440; 53 Mich. 60, S. C. 19 N.W. 549; 58 N.W. 630. Dangerous character of defendant's plant is not the sole test of its liability. 37 S.W. 570, S. C. 63 Ark. 65; 50 N.W. 50.

J. D. Conway, R. B. Williams and W. S. & F. L. McCain, for appellees.

Testimony shows that the fire was caused by sparks from appellant's chimney. A business which necessarily endangers its neighbors is a nuisance, and it is negligence to operate it. Wood, Nuisances, 75; 54 Ark. 209; 35 Ark. 402. Ordinary care is no defense. 165 U.S. 1. Appellants Owed greater degree of care on account of priority of appellees. Bishop, Non-Contract Law, 418-419.

OPINION

RIDDICK, J., (after stating the facts.)

In each of these cases there were two disputed questions of fact, which were submitted to the jury for determination. The first question was whether the fire which destroyed the church building and dwelling house was caused by sparks from the smokestack of the compress company. That question was properly submitted, and was answered by the jury in the affirmative. The other question was whether the fact that such sparks were emitted from the smokestack was due to the negligence of appellant company. That question was also determined by the jury in favor of the plaintiff, but the appellant contends that it was not properly submitted to the jury. On this point, the presiding judge, in his charge to the jury, said that it was incumbent on plaintiff to show that the fire was caused by the negligence of the defendant; but in the fourth instruction, set out in the statement of facts, he further stated that if "it was impossible for the compress company to prevent the emission of sparks from its smokestack, which endangered adjacent property, after it had exhausted all known appliances to prevent the escape of sparks, then it was negligence to continue the operation of such property in such a place."

Now there are certain occupations, certain uses of property, so dangerous to neighboring property that it is unlawful to carry them on in a populous neighborhood. This would be true of a powder mill, or of an establishment for the manufacture of fireworks, and of other dangerous occupations. But there is nothing in the evidence, so far as we can see, tending to show that the operation of this...