Southern Ry. Co. v. Darwin

• Decision Date: 14 May 1908
• Citation: 47 So. 314,156 Ala. 311
• Parties: SOUTHERN RY. CO. v. DARWIN ET AL.
• Court: Alabama Supreme Court

47 So. 314

156 Ala. 311

SOUTHERN RY. CO. v. DARWIN ET AL.

Supreme Court of Alabama

May 14, 1908

Rehearing Denied July 3, 1908.

Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.

Action by J. W. Darwin and another against the Southern Railway Company for damages for the destruction of property by fire. From a judgment for plaintiffs, defendant appeals. Affirmed.

McClellan J., dissenting.

The cause was tried upon counts 3 and 4, which allege simple negligence and the destruction of the property therein described by means of fire negligently communicated from one of the locomotives being operated by defendant on its said railroad. The second special plea alleges the proximity of the gin house to the railroad and the contributory negligence of plaintiff in not having a watchman at the gin, since the plaintiff knew of the proximity of the gin and cotton to the railroad and the liability of fire from passing trains. Plea 3 alleges the proximity of the gin to the railroad, and that with this knowledge plaintiff piled cotton carelessly and negligently so near to the railroad and the gin, knowing of its exposed condition to fire and that it would communicate the fire to the gin, etc. Pleas 4 and 5 are an elaboration of pleas 2 and 3. A number of demurrers not necessary to be here set out were interposed to these pleas and sustained. The facts are sufficiently stated in the opinion.

At the request of the plaintiff the following charges were given for the plaintiff: "(2) Uncertainty in your minds as to whether the fire was caused by reason of the engine being improperly made, or being in bad condition, or being badly handled in respect to the throwing of sparks, is no reason for failing to find a verdict for the plaintiffs; and it will be your duty to find your verdict for the plaintiffs if you believe from the evidence that the fire was caused by either one of those three causes. (3) I charge you that, if the plaintiffs have reasonably satisfied you from the evidence that the fire was caused by defendant's locomotive, then the plaintiffs have nothing to do until the defendant has reasonably satisfied you of each and all of the three following things: (1) That so far as regards the throwing of sparks the engine was properly built; (2) that in that respect said engine was not in a bad or defective condition (3) that the throwing of sparks is not caused by unskillful or careless management of the locomotives. And even should the defendant in its turn reasonably satisfy you of all the three things above named, yet the plaintiffs may by their evidence overcome the evidence of defendant, and show you that the fire was set out from the engine, either because it was badly built, or in bad condition, or badly handled; and if, from all the evidence in the case, you believe that the fire was caused by the negligence of the railway, your verdict must be for the plaintiffs."

The following charges were refused to defendant: (1) The affirmative charge. (2) Affirmative charge as to fourth count. (3) Affirmative charge as to third count. "(4) The evidence in this case would not authorize a recovery on account of any improper construction of the engine going east, which stopped at Hollywood on the night of the fire. (5) There is no evidence in this case that would authorize a verdict for the plaintiffs upon the ground that the engine going east, which stopped at Hollywood on the night of the fire, was not carefully handled or managed when it passed the gin. (6) The evidence in this case would not authorize a recovery on account of any defect in the spark arrester on engine No. 284."

There was a motion for a new trial, based upon the admission of testimony, the giving of the two above-quoted charges requested by plaintiff, and the refusal of the court to give the charges requested by defendant, which motion was overruled.

Humes &amp Speake, for appellant.

Bilbro & Moody, for appellees.

ANDERSON J.

"The preferable doctrine appears to be that the owner of premises near or contiguous to a railroad right of way is not bound to anticipate negligence on the part of the railroad, and, by way of prevention to make provision against the communication of fire. Such proprietors in general owe no duty to railroad companies in this respect, and hence negligence, in its legal sense, can rarely be imputed to them. The rule in this connection, as most frequently expressed, is that the owner of property near or through which a railroad passes is entitled to use it in any natural and lawful manner, without incurring the imputation of contributory negligence in the occurrence of a fire; that he may use or permit his property to be used, or to be and remain in the same manner or condition as if no railroad passed within the range of communication of fire. Such proprietors may cultivate their lands, or build upon them, or leave them in a state of nature, as they see proper, and take upon themselves thereby no other risks than such as are incident to the operation of the road with proper care by the company, and will, therefore, be entitled to damages for injuries by fires arising from the negligence of the company in the construction or management of its locomotives, or in the condition in which its track is suffered to remain. Considered in another aspect, the preferable doctrine simply means this: The owner of adjacent property assumes the risk of loss from all fires started or communicated without the negligence of the railroad. If he permits his premises to be or remain in a highly combustible state, or locates his buildings in an exposed portion with reference to flying sparks, his risk is thereby increased. It may be argued in opposition to this view that such conduct on the part of adjacent proprietors would impose on the part of the railroad company an increased and onerous burden of care and prudence, since, as has been seen, what is due care on the part of the railroad is made to vary with the circumstances. But this is not so. In point of fact the most extreme degree of care to which railroad companies are ever held is fixed and reasonable. They are only required to employ machinery of approved construction, and to operate their engines with such precautions as are not inconsistent with the lawful, reasonable, and effective conduct of their business. Beyond this the abutting property owners take the risk." 13 Am. & Eng. Ency. Law (2d Ed.) pp. 482-484, and cases there cited; L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 262, 28 So. 438, 50 L. R. A. 620; L. & N. R. R. Co. v. Malone, 116 Ala. 600, 22 So. 897.

"A person has the right to construct buildings on any part of his property, and to enjoy the same, without rendering himself liable to the negligence of a railroad company whereby they are destroyed by fire. It has been held, therefore, that one is not guilty of contributory negligence in building a house near a railroad track, so as to prevent a recovery, if burned through the negligence of the company, though he knew the danger of fire was thereby increased." 13 Am. & Eng. Ency. Law (2d Ed.) 487. Nor does the law require a party to stand guard over his property, as was held in the cases of Tien v. Louisville, etc., Ry. Co., 15 Ind.App. 304, 44 N.E. 45, and Jacksonville R. R. v. Peninsular Land Co., 27 Fla. 1, 157, 9 So. 661, 17 L. R. A. 33, 65, and which we approve. A person having property adjacent to a railroad is not bound to keep his property in such a condition as to guard against the negligence of the railroad company, but every person has the right to enjoy his property in an ordinary manner; and while one is...