Ragsdale v. Southern Ry. Co.

• Decision Date: 08 April 1903
• Citation: 121 F. 924
• Parties: RAGSDALE et al. v. SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

121 F. 924

RAGSDALE et al. v. SOUTHERN RY. CO.

United States Circuit Court, D. South Carolina.

April 8, 1903

G. W Ragsdale and John T. Seibels, for plaintiffs.

C. P Sanders, for defendant.

SIMONTON Circuit Judge.

This case comes up upon a motion for a new trial. John K. Ragsdale was the occupant of a building on the track of the Southern Railway. In this building he had a stock of goods, not fully covered by insurance. The building was consumed by fire on the 7th of March, 1902, and its contents were destroyed. The insurance companies had paid their share of the loss, and this action was brought in the name of Mr. Ragsdale and these companies subrogated pro tanto to him to recover damages from the railway company. The ground of the action is that the fire was communicated from one of the trains of the railway company, and the action is based on section 2135, civil Code of South Carolina. Issue having been joined, the cause was heard before a jury. After the jury was charged, they retired, remained some time in consultation, and could not agree. Coming into court and stating this, they were instructed to find for the defendant. This was the course pursued in W. B. Grimes Company v. Malcolm, and approved by the Circuit Court of Appeals, Eighth Circuit, in 7 C.C.A 426, 58 F. 670.

The motion for the new trial is based on five grounds. The second and third go to errors in the charge to the jury. As the jury were instructed to find their verdict, they could not have been misled by errors in the general charge. Therefore these grounds will not be discussed.

The first ground of exception is that the trial judge should not have sustained, as he did, the objection of defendant's counsel to the introduction of testimony by a number of witnesses other than Hamilton, Hill, and the two Blairs as to additional fires in the vicinity of the station at Blairs shortly prior and subsequent to the fire in question set by defendant's locomotives. One fact which plaintiffs desired to show was that fire could be set, and in fact was set, from defendant's locomotives, on lands adjacent to the track. This testimony was competent, and objections to its introduction were overruled. They then produced four witnesses, each of whom proved that on several occasions, severally testified to by them, combustible material adjacent to the track had been set on fire by fires from the locomotives of this railway. They then offered other witnesses to the same effect. They were not permitted to testify. The fact, in the opinion of the trial judge, had been sufficiently proved, and cumulative testimony to the same point could only occasion a waste of time. This is within the discretion and control of the trial judge. It may be noted, by the way, that under the statute law of South Carolina (section 2860) in a bill of costs there should not be allowed a charge of more than three witnesses to prove one particular matter of fact.

The other grounds go to the propriety of instructing the jury to find for the defendant. The law on this point is settled by numerous decisions of the Supreme Court of the United States. 'When the burden of proof is on the plaintiff (as it clearly was in this case), and the only direct testimony is contrary, the judge may properly direct the jury to find for the defendant. ' Herbert v. Butler, 97 U.S. 319, 24 L.Ed. 958. 'It is no error for a judge to direct a jury to find an issue for one of the parties, when, if the jury found otherwise, it would have been his duty to set aside the verdict as unsupported by and in hostility to the evidence. ' Randall v. B. & O.R.R. Co., 109 U.S. 478, 3 Sup.Ct. 322, 27 L.Ed. 1003; Montclair Tp. v. Dana, 107 U.S. 162, 2 Sup.Ct. 403, 27 L.Ed. 436; Elliott v. Chicago, etc., R.R., 150 U.S. 345, 14 Sup.Ct. 85, 37 L.Ed. 1068; Sipes v. Seymour, 22 C.C.A. 90, 76 F. 116; Franklin Brass Co. v. Phoenix Ins. Co., 13 C.C.A. 124, 65 F. 773.

To maintain their case plaintiffs proved that the building which Mr. Ragsdale occupied was built close to and parallel with the track of the defendant, and within 8 or 10 feet of it that it was of wood, was 60 feet long, and had been built some time before 1883; that previous to the 7th of March there had...