Savannah, F. & W. Ry. Co. v. Tiedeman

• Decision Date: 17 February 1897
• Citation: 39 Fla. 196,22 So. 658
• Parties: SAVANNAH, F. & W. RY. CO. v. TIEDEMAN et al.
• Court: Florida Supreme Court

22 So. 658

39 Fla. 196

SAVANNAH, F. & W. RY. CO. v. TIEDEMAN et al.

Florida Supreme Court

February 17, 1897

Appeal from circuit court, Suwannee county; John F. White, Judge.

Action by George W. Tiedeman & Bro. against the Savannah, Florida &amp Western Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. It is error for the court to submit a case to the jury for a finding on facts stated in the charge of the court, but not put in evidence; and such a submission, under circumstances calculated to prejudice the opposite party, will cause a reversal of the judgment.

2. A plaintiff is confined in his recovery to the cause of action alleged in his declaration, and the court should not go outside of the issues raised by the pleadings in submitting the case to the jury.

COUNSEL

John E. Hartridge and B. B. Blackwell, for appellant.

J. S White, for appellees. Appellees sued appellant for the value of a certain sawmill and fixtures, the property of the former situated near the railroad track of the latter, and alleged to have been destroyed by fire caused by the negligence of the company. The declaration contains two counts, in substance the same, in alleging a basis of liability on the part of the defendant company. After alleging that plaintiffs (appellees here) were the owners of a certain sawmill and fixtures situated in the town of O'Brien, Suwannee county, Fla., near the railroad track of the defendant company, the declaration states that said company was the owner of 'a line of railroad running through Suwannee county, state of Florida, and through the town of O'brien, in said county, and was the operator of said line of road aforesaid, and in the operating of said line of railroad said defendant ran to and fro over and upon said line of railroad through said town of O'Brien divers railroad steam locomotives, engines, and machinery, dangerous to persons and property, which said steam locomotives or engines were heated to great heat by the burning of large quantities of wood therein by said defendant in the production of steam as a locomotive power, and the said defendant, in and by the running, operating, and firing one of its said steam engines or locomotives as aforesaid by its agents, servants, and employés over its said line of railroad, on the 27th day of April, 1889, at and in the town of O'Brien aforesaid, did negligently, carelessly, and recklessly permit, cause, and allow sparks of fire to escape from said steam engine or locomotive, and did then and there negligently, carelessly, and recklessly permit and allow sparks of fire to escape from said steam engine or locomotive, and did then and there negligently, carelessly, and recklessly permit, cause, and allow said sparks of fire so allowed to escape from said steam engine or locomotive to reach, to come in contact with, and ignite, and burn down, consume, and destroy, one steam sawmill, complete, then and there situate, and with all the machinery therein and thereto attached, of the value of $5,000, the property of the plaintiffs,' to their damage $10,000.

The plea of the general issue was interposed, and subsequently another plea was filed, but ruled out on demurrer. The case was tried on the plea of the general issue, and a verdict and judgment for plaintiffs entered, from which an appeal was taken under statutes then permitting appeals in actions at law.

Omitting any reference to the testimony as to the ownership of the property in question and the estimates of its value, it appears that the mill was situated in the town of O'Brien, about 25 feet from the main track of the defendant railroad, and was destroyed by fire between 2 and 3 o'clock p. m. April 27, 1889. The mill was not operated at the time of the fire, and had not been for some time. A few minutes--not more than 20, as fixed by the testimony--before the fire was discovered at the mill, a passenger train on the defendant's road went south, stopping some distance below the mill. There was east of the main track of the railroad a side track, and within 2 feet of it, further east, there was a wharf connected with the mill that was situated some 15 or 20 feet further east. The whole of the property was on the right of way of the railroad company, and so conceded to be by plaintiffs. A witness for plaintiffs testified that he was seated about 60 yards from the mill, with no obstructions between, when the train approached it and passed on the main track; that it was very dry and very windy, the wind blowing from the southwest to the northeast, and that sparks blown from the passing locomotive would have gone in the direction of the mill. He was looking at the train as it approached the mill, and in answer to the question what was the condition of the locomotive when he first saw it, as to whether or not it was exhausting, said: 'No, sir; when the train got up near the switch, the north end of the side track, it kinder slacked for some purpose, or rather shut off, and then down near the mill, about the end of the switch, she seemed to tighten up,' and exhausted a few times, and went down to the station, where it stopped.

From the diagram put in evidence by the plaintiffs, drawn by a party who testified that he was familiar with the surroundings, it appears that the mill property was situated about midway of the side track, and that the north end of it was some distance, as was the south end, from the mill; but the witness, in further stating that the exhausting was at the end of the side track, says it was right at the north end of the mill, and the exhausting was only about half a dozen times, and he supposed the train had gone during that time about 30 or 35 yards. Witness saw no smoke or indication of fire at the mill before the train arrived, but, in a few minutes after it left, saw a small smoke about where the butting saw of the mill was situated. The smoke had the appearance or was about like that coming from a pipe or cigar, and did not attract his attention; but, hearing some one say 'Fire!' he looked towards the mill, and saw the flames. The butting saw was located at the south end of the mill. There was another mill on the opposite side of the railroad, and a little south of the one that was burned, and it had a slab pit, with fire in it, situated about 150 or 200 feet distant. The owner of this mill testified for plaintiffs that he was in his store, some 60 yards away,...