St. Louis, I. M. & S. Ry. Co. v. Ayres

• Decision Date: 27 January 1900
• Citation: 55 S.W. 159
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. AYRES.
• Court: Arkansas Supreme Court

Page 159

55 S.W. 159

ST. LOUIS, I. M. & S. RY. CO. v. AYRES.

Supreme Court of Arkansas.

January 27, 1900.

Appeal from circuit court, Scott county; Edgar E. Bryant, Judge.

Action by Ayres against the St. Louis, Iron Mountain & Southern Railway Company to recover damages resulting from a fire set by one of defendant's engines. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Dodge & Johnson, for appellant. Winchester & Martin, for appellee.

HUGHES, J.

The complaint charged that plaintiff owned certain lands in Sebastian county; that the railroad ran through the same; that on July 27th and on August 1st and 3d, by reason of the defective construction, handling, managing, and operation of an engine, sparks, fire, and cinders were thrown upon the said land, setting out a fire, and causing it to destroy 600 acres of meadow and growing grass, valued at $300; 715 fence posts, valued at $14; 109 cedar posts, valued at $21.80; 18 fence posts, valued at $2.70; and 65 oak trees, valued at $34. Judgment was prayed for $430, with interest. The answer denied explicitly each allegation of the complaint. After the evidence was in, and instructions had been given them by the court, the jury rendered a verdict for the plaintiff in the sum of $322.50. A motion for a new trial was filed, which was overruled, to which exceptions were saved, and the case appealed to this court.

The third instruction given by the court over the objection of the defendant, and to the giving of which it excepted, is as follows: "Now, conceding that defendant has shown in this case that the engine was properly constructed, and with the best appliances to prevent the escape of fire, there is no showing of what care was used in the management and handling of the alleged trains; and so the court tells you that if a fire was started by fire escaping from an engine of defendant that set fire to grass on the right of way, and that such fire spread to and burned plaintiff's property, the court tells you that defendant is presumed to have been negligent, and is liable for the damage done. The burden of proving that the fire was set out by the defendant's engine is on the plaintiff to show by a fair preponderance of the evidence."

The appellant objected to the statement in this instruction "that there was no showing of what care was used in the management and handling of the alleged trains." The appellant contends that, when it had shown that the engineer who handled the train that set out the fire was competent and skillful, this ought to have been considered by the jury in determining whether proper care was used in handling the train on the occasion when the fire was set out, and that the court therefore erred in the above statement of the instruction. We cannot agree with the learned counsel for the appellant in this. If this were the law, all a defendant would have to do to exonerate itself from the charge of negligence in a case of this kind would be to prove that its engineer was skillful and competent, and thus change the burden of proof to the plaintiff. From the setting out of the fire the law presumes negligence, and, to overcome this presumption, the defendant must show due care at the time in the management and handling of the engine. It is not sufficient to merely show that the engineer was competent and skillful, for competent and skillful men are sometimes negligent. This action is to recover damages caused by an injury by an alleged specific act of negligence, and if the engineer was negligent on this occasion, and his negligence caused the injury, it matters not how skillful and competent he was generally, the company is liable. The presumption is that he was negligent. It was his privilege to overcome this presumption by showing that on the occasion of setting out the fire such care was used as would overcome the presumption of negligence. Railway Co. v. Mitchell, 57 Ark. 418, 21 S. W. 883; Railway Co. v. Jones, 59 Ark. 105, 26 S. W. 595; Tilley v. Railway Co., 49 Ark. 540, 6 S. W. 8.

As to the measure of damages for the destruction of the trees on the land by reason of the fire, we think the fifth instruction by the court announced the proper measure; that is that the measure was the difference between the value of the land with the trees unburned and with the trees burned. This means the market value of the land. The trees were a part of the freehold, and could not be replaced in a short time, and only at considerable expense. Coykendall v. Denkee, 13 Hun, 260. The destruction of the trees was a depreciation in the value of the land of which they were part, and it was competent to show by evidence what the land was worth before the destruction of the trees, and what it was worth after they were destroyed; and, this being shown, the quantum of damages was a matter of computation for the jury. 3 Suth. Dam. 612; Coykendall v. Denkee, 13 Hun, 260; Railway Co. v. Combs, 51 Ark. 324, 11 S. W. 418....