Southern Ry. Co. v. Slade

• Decision Date: 03 June 1915
• Docket Number: 862
• Citation: 68 So. 867,192 Ala. 568
• Parties: SOUTHERN RY. CO. v. SLADE.
• Court: Alabama Supreme Court

68 So. 867

192 Ala. 568

SOUTHERN RY. CO. v. SLADE.

No. 862

Supreme Court of Alabama

June 3, 1915

Appeal from Circuit Court, Washington County; John T. Lackland Judge.

Action by James B. Slade against the Southern Railway Company for damages for setting out fire. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Transferred from Court of Appeals under section 6, Acts 1911, p. 450.

Count 1 as amended charges negligence in permitting combustible material to remain on the right of way. Count 2 charges a defect in the locomotive or want of a spark arrester. Count 3 charges the negligent operation of the locomotive. While count 4 charges negligence in its construction. Special pleas A and B, which were filed to the original complaint only, set up plaintiff's contributory negligence in permitting dry grass, refuse, trash, or other inflammable substances to accumulate and remain near his said building, by means of which the fire complained of was communicated to his building. These pleas were stricken on motion of plaintiff. Defendant also filed and supported by proof a special plea of tender of $125, accompanied by payment of this sum into court. There was verdict for plaintiff for $190, and judgment accordingly.

Granade & Granade, of Chatom, for appellant.

Joe M Pelham, Jr., of Chatom, for appellee.

SOMERVILLE J.

In an action against a railroad company for negligently setting fire to property near its right of way by sparks emitted from an engine which is deficiently constructed or equipped, or improperly operated, a plea of contributory negligence, based upon the property or premises injured as promotive of the fire, is no defense. So. Ry. Co. v. Darwin, 156 Ala 311, 47 So. 314, 130 Am.St.Rep. 94; L. & N.R.R. Co. v. Marbury Lbr. Co., 125 Ala. 237, 260, 28 So. 438, 50 L.R.A. 620. The proper mode of elimination, however, is by demurrer, and it is error to sustain a motion to strike such a plea from the file. A.G.S.R.R. Co. v. Clark, 136 Ala. 450, 34 So. 917. Nevertheless, the pleas stricken by the court in this case were incapable of amendment, and the action of the trial court was not prejudicial to the defendant in such sense as to work a reversal of the judgment.

Whether these pleas would have been meritorious if they had been interposed to the first count, as amended, we need not inquire. See cases cited supra, and also Sullivan Timber Co. v. L. & N.R.R. Co., 163 Ala. 125, 50 So. 941.

It is elementary law that, when the plaintiff shows injury to his property by sparks emitted from the defendant's locomotive, a prima facie case of negligence is thereby established, and the plaintiff may recover unless the defendant shows itself free from negligence in the construction, equipment, or operation of its locomotive, or in the condition of its right of way, if the fire is first started there. Deason v. A.G.S.R.R. Co., 65 So. 172.

It is shown in this case, without dispute, that the locomotive which set out the fire complained of was properly constructed, properly equipped with an approved and efficient spark arrester, in good repair, and properly managed on the occasion in question.

This rebuts the initial presumption of negligence as to the condition and operation of the locomotive. L. & N.R.R. Co. v. Marbury Lbr. Co., 132 Ala. 520, 32 So. 745, 90 Am.St.Rep. 917. And, in the absence of countervailing evidence, the defendant was entitled to the general affirmative charge on the second, third, and fourth counts of the complaint, which respectively charge negligence in the equipment or operation of the locomotive in question. L. & N.R.R. Co. v. Marbury Lbr. Co., 125 Ala. 262, 28 So. 438, 50 L.R.A. 620. Nothing in the bill of exceptions has any tendency to show that this locomotive at any time emitted sparks of unusual size or quantity; and the fact that it emitted some sparks which fell upon and ignited the dry grass at other points along the track had no tendency to show either defective equipment or negligent operation. L. & N.R.R. Co. v. Marbury Lbr. Co., supra; Stanley v. L. & N.R.R. Co., 65 So. 39; Farley v. M. & C.R.R. Co., 149 Ala. 557, 42 So. 747. This is so, because courts judicially know that "fire will escape from the best equipped and most prudently operated locomotives in sufficient quantities to ignite combustible material along the track." L. & N.R.R. Co. v. Miller, 109 Ala. 500, 506, 19 So. 989; L. & N.R.R. Co. v. Marbury, supra.

In short, upon the undisputed evidence before the court, the plaintiff was entitled to recover, if at all, only by reason of the defendant's negligent permission of inflammable materials, such as grass and leaves, on its right of way, as charged in the first count. It follows that the trial judge erred in refusing to give the general affirmative charge for the defendant, as requested, on each of the other counts.

The defendant's liability under the first count was a question for the jury, and the general affirmative charge was properly refused as to it. L. &...