Richmond & D.R. Co. v. Medley

• Decision Date: 28 April 1881
• Citation: 75 Va. 499
• Parties: RICHMOND AND DANVILLE RAILROAD CO. v. MEDLEY.
• Court: Virginia Supreme Court

75 Va. 499

RICHMOND AND DANVILLE RAILROAD CO. v. MEDLEY.

Supreme Court of Appeals of Virginia.

April 28, 1881

1. A railroad company may be supplied with the best engines and the most approved apparatus for preventing the emission of sparks, and operated by the most skillful engineers; it may do all that skill and science can suggest in the management of its locomotives; and still it may be guilty of gross negligence in allowing the accumulation of dangerously combustible matter along its track, easily to be ignited by its furnaces, and thence communicated to the property of adjacent proprietors.

2. If a railroad company allows the accumulation of inflammable matter upon the line of its track, and it is set on fire by sparks or coals from its engine, and the fire extends to and injures the property of adjacent proprietors, and a jury determines, under all the circumstances, that the railroad company is liable for the injury done by the fire to the property of an adjoining proprietor, they being the proper body to determine the question of negligence, the appellate court will not reverse their judgment unless there is a plain deviation from the evidence, or it is palpable the jury have not drawn a correct inference from the facts.

3. No obligation rests upon the owners of property along the line of a railway to keep it in a condition to be always safe from the fires thrown from passing engines. They are not bound to remove combustible material on their own land in order to obviate the consequences of possible or even probable negligence of the cempany. And in such cases there cannot be contributory negligence on the part of the owner of the property destroyed.

4. An instruction given on the motion of the defendant, and not objected to by the plaintiff, though erroneous, cannot be objected to in the appellate court; but if the jury, in opposition to the instruction, find a verdict for the plaintiff, and that verdict is correct upon the evidence, the appellate court will not reverse the judgment entered upon it.

This was an action on the case in the circuit court of Halifax county, brought by James Medley against the Richmond and Danville Railroad Company, to recover for damages done to certain buildings and timber of the plaintiff done by fire which it was alleged escaped from an engine of the company in its passage through the lands of the plaintiff.

On the trial, after all the evidence had been introduced, the court on the motion of the defendant, gave an instruction to the jury, which was not excepted to by the plaintiff. (See the instruction infra. ) And after this instruction was given, on the argument of the case before the jury, the counsel of the plaintiff relied upon the fact that the dry grass which was permitted by the defendant to remain on the land, and which it was contended caught first from the sparks from the engine, was sufficient to charge the defendants; and this was allowed to go to the jury without any instruction on that subject being asked or given.

There was a verdict in favor of the plaintiff for $900, and a motion by the plaintiff to set it aside, on the ground that it was contrary to the evidence. But the court overruled the motion, and rendered a judgment upon the verdict, and the defendant excepted, and obtained a writ of error and supersedeas to this court.

The statement of facts showed very conclusively that the engine of the defendant was in good order; that the smoke-stack was of the best known for arresting sparks, and that the engineer was a man of long experience in his profession and of great skill, and very careful and competent to discharge the duties of his position--reliable and faithful.

It appeared further, that on the 13th of March, 1873 immediately after the express train of the defendant had passed a point on the line of its railroad, through the lands of the plaintiff, the dry grass and broom sedge on the borders of the cut through which the train had just passed was seen to be on fire; and as said train passed said point whether sparks escaped from the engine there was a conflict of testimony. That the grass which first caught fire was upon the land which had been condemned for the purposes of the railroad, though not used by it; and there was no fence between the condemned land and that of the plaintiff. And the ground where the fire first caught was covered with grass precisely as the field extending from the line of the railroad to the first piece of wood mentioned was covered.

The statement further showed how the fire was driven by the wind, and the property destroyed, and its value.

The instruction given by the court on the motion of the defendants was as follows:

" Evidence having been introduced tending to show that on the occasion complained of by the plaintiff, the engine used by the defendant was properly constructed, in good order, had the usual apparatus for preventing the escape of sparks, and was managed with care, skill, and diligence by discreet persons, the court instructs the jury, that if they believe from the evidence that the defendant's engine, on the occasion complained of, was properly constructed, in good order, had the most approved and extensively used apparatus for preventing its engine from emiting sparks, likewise in good order, and was being operated in a proper manner, and with reasonable care and skill, it is not responsible for any injuries incidentally resulting to the plaintiff in the reasonable exercise of its right to propel locomotives by steam on its own track, as authorized by its charter, even though they should believe, from the evidence, that the fire complained of did originate from the engine of the defendant."

H. H. Marshall, for the appellant.

H. Edmonds, for the appellee.

OPINION

STAPLES, J.

Upon the trial of this cause in the court below the defendant after the conclusion of the evidence, asked for an instruction, which was given by the court. The jury, notwithstanding the instruction, found a verdict for the plaintiff. The defendant submitted a motion for a new trial, which was overruled, and an exception taken. The point relied upon by the defendant is, that the finding of the jury is in direct contravention of the ruling of the court, to which no exception was taken by the adverse party. It will be only necessary to give so much of the instruction here as is sufficient to explain the subject matter of controversy. It declares substantially, if the jury are...