Sherrell v. Louisville & N.R. Co.

• Decision Date: 19 January 1905
• Citation: 44 So. 153,148 Ala. 1
• Parties: SHERRELL v. LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

44 So. 153

148 Ala. 1

SHERRELL v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

January 19, 1905

Appeal from Circuit Court, Morgan County; Hon. O. Kyle, Judge.

"Not to be officially reported."

Action by S. H. Sherrell against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

See 38 So. 1038.

The complaint contained seven counts. The first count declared that the defendant carelessly and negligently destroyed plaintiff's building and contents by fire communicated from an engine being operated by defendants through said town. The second count laid the negligence to the servants or agents of defendant in operating said engine. The third count declares upon the negligence of the defendant's servants or agents, in charge of a train of engine and cars, in running a train through the town of Hartsells at a high and rapid rate of speed, with throttle and steam wide open and turned on full, thereby causing said engine to emit fire and sparks of an unusual quantity and larger than ordinary size. The negligence laid in the fourth count was the use by the defendant of engines and appliances which were defective and insufficient, and permitted sparks and fire in unusual quantities and large and dangerous size to be emitted setting fire to the property of plaintiff. The fifth count declared that defendant, through and by its agents and servants, so carelessly and negligently operated its engines as to permit sparks and fire to be emitted in large numbers and unusual size, setting fire to plaintiff's property and destroying it. The sixth count alleges that the servants or agents of the defendant were acquainted with the character and locations of the buildings burned, their proximity to the track, and that the wind was right, giving its direction, to set fire onto the buildings, which fact was also known to the said servants and agents, and, notwithstanding this fact and knowledge, they so carelessly and negligently ran and operated said engine as to cause it to emit sparks, etc setting fire, etc. Count A alleges that defendant negligently caused or allowed plaintiff's property to be set on fire and destroyed by means of its locomotive.

The testimony tended to show that the plaintiff owned a building and its contents in the town of Hartsells; that it and other buildings of like character faced the defendant's right of way through said town, and were a short distance away that they were of wood; that the weather was dry at that time, and had been for a long time; that all the buildings along the row were of wood, and covered with wooden shingles or boards, the boards on some of the buildings being old and weather-worn; that about 30 or 40 minutes after a certain engine and train of cars had passed the point where the fire occurred, it was discovered that two of the buildings were on fire, and that the fire was communicated to and destroyed the building of plaintiff, together with its entire contents that the building and its contents were worth about $1,200 that the wind was blowing from the track towards the buildings. It further tended to show that the engine and train of cars which passed before the fire some 30 or 40 minutes was steaming ahead about 40 miles per hour, and was emitting sparks in large quantities and of unusual size, and throwing them about 50 feet in the air. Witness Nichols testified that he saw the last freight train pass before the fire was discovered, and was in the depot at the time; that he saw the engine about a quarter of a mile before it reached the town, and until it was 200 or 300 yards past the town that it was emitting sparks in unusual quantities and size; that his attention was directed to it by the operator in the depot. The plaintiff then asked the witness: "Did, or not, you see other engines, at about that time, coming through the town and emitting sparks?" The defendant objected to the question. It was admitted that the engine passing the town about 30 or 40 minutes before the fire was engine No. 903. The objection was predicated upon the fact that it was not shown that the other engines inquired about were being operated under like conditions and surroundings. The objection was sustained, and plaintiff excepted. The plaintiff then asked the witness: "Did the other engines that passed through that night throw as many sparks or as large sparks as this engine?" The court sustained an objection to the question. The plaintiff also reserved exceptions to the action of the court in refusing to permit it to ask the witness "whether or not at any time you ever saw engines throw as many sparks or as large sparks as this engine." Plaintiff excepted to the action of the court in allowing it to ask the following questions of its witnesses: "Could that engine properly perform its functions and the purposes for which it is engaged with a smaller netting than what is known as 'standard netting' shown you, and which has been said was in this engine?" "What was its speed compared with other freight trains?" "What did engine No. 903 have, if...