Southern Ry. Co. v. E.L. Kendall & Co.

• Citation: 69 So. 328,14 Ala.App. 242
• Decision Date: 11 May 1915
• Docket Number: 323
• Parties: SOUTHERN RY. CO. v. E.L. KENDALL & CO.
• Court: Alabama Court of Appeals

69 So. 328

14 Ala.App. 242

SOUTHERN RY. CO. v. E.L. KENDALL & CO.

No. 323

Court of Appeals of Alabama

May 11, 1915

Rehearing Denied June 3, 1915

Appeal from Circuit Court, Madison County; D.W. Speake, Judge.

Suit by E.L. Kendall & Co. against the Southern Railway Company, for damages for the destruction of certain cedar poles alleged to have been burned by fire set out from a locomotive of defendant. Judgment for plaintiff, and defendant appeals. Affirmed.

There were five counts in the complaint, but only four went to the jury, as the first count was stricken on demurrer. The facts sufficiently appear. The following charges were refused the defendant. Charges 3, 4, and 5 were the affirmative charges as to counts 3, 4, and 5.

"(1) If the jury believe from the evidence that one of defendant's engines threw sparks on dry grass or stubble or other combustible material on defendant's right of way, and that the sparks so thrown themselves set fire to said dry grass, stubble, or other combustible material, and that the burning of said dry grass, stubble, or other combustible material communicated the fire to plaintiff's property, and, further, that said engine was furnished with a spark arrester and other appliances, and that same were in good condition, then they ought to find a verdict for the defendant."

"(11) If the jury believe from the evidence that defendant's engine was furnished with spark arrester and other appliances for the purpose of preventing the escape of fire or sparks of a good character, and such as was in general use at the time by well-regulated railroads, and that such appliances were in good condition, and that the defendant was not guilty of any negligence in operating defendant's engine and train, but that fire nevertheless escaped, and fell and set fire to the property of plaintiff the jury ought to find the verdict for the defendant."

(15) Same as 11.

"(23) If the jury find from the evidence that defendant permitted grass and other combustible material to accumulate on the right of way, this cannot be deemed negligent, unless it is affirmatively shown that sparks were emitted from the engine. This is not a matter of mere conjecture, but the burden is on the plaintiff to show the fact to the reasonable satisfaction of the jury."

(No charge 25 appears, but charge 21 is evidently meant and it is legally similar to charge 23.)

"(7) It would be a fact that one of defendant's engines recently passed the point where the fire was discovered near the track, or shortly thereafter, raises no presumption of law that the fire was started by said engine or train."

"(10) If you believe from the evidence in this case that the engine in question at the time of the accident was supplied with the most approved appliances and devices for the prevention of fires in use by well-regulated railroad companies in this country, and that such appliances were well managed and handled by the servants in charge thereof at the time, and that there was no negligence upon the part of the defendant by which said fire was communicated to the posts in contest here, at or near the said post, then it is your duty to find for the defendant."

"(12) If you believe from the evidence that one of defendant's engines threw sparks upon the lumber or posts of plaintiff, and that the sparks so thrown set fire to said lumber or posts, and that the burning lumber or posts communicated the fire to plaintiff's other property, and furthermore, that said engine was furnished with spark arrester and other appliances of approved character to prevent, as far as possible, the throwing of sparks, and was properly handled by the engineer, and that said spark arrester, and other appliances were in good condition, then they ought to find a verdict for the defendant."

"(22) If the jury find from the evidence that engine No 1004 was in good condition, was properly handled and had a spark arrester, and all modern appliances, and was equipped in like manner with engines used on well-regulated railways no inference of negligence arises from the accidental dropping of embers on the right of way, on which grass or stubble had been permitted to accumulate."

Cooper & Cooper, of Huntsville, for appellant.

Spragins & Speake, of Huntsville, for appellee.

BROWN J.

There is nothing in the record showing that the motion for a new trial was ever acted upon by the trial court, and for this reason nothing is presented for review by assignments of error predicated on this motion. Milner Coal & R.R. Co. v. Wiggins, 143 Ala. 132, 38 So. 1010.

There is nothing in the record showing that motion was made to exclude the testimony of J.L. Kendall as to the market value of cedar at Gurley's Station, and assignments of error predicated on such supposed ruling are not sustained. The only motion to exclude testimony given by this witness was made with respect to an explanation of the difference between the statement presented when the claim for damages was filed with the defendant and the claim as embraced in the complaint.

Where there is more than one count in the complaint and the defendant is not entitled to the affirmative charge on all the counts, it is not error to refuse charges in the form of charges 3, 4, and 5. City of Birmingham v. Poole, 169 Ala. 177, 52 So. 937; Kress v. Lawrence, 158 Ala. 652, 47...