St. Louis, Iron Mountain & Southern Railway Co. v. Dawson

• Decision Date: 13 January 1906
• Citation: 92 S.W. 27,77 Ark. 434
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. DAWSON
• Court: Arkansas Supreme Court

92 S.W. 27

77 Ark. 434

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. DAWSON

Supreme Court of Arkansas

January 13, 1906

Appeal from Jefferson Circuit Court; ANTONIO B. GRACE, Judge reversed.

Judgment reversed and cause remanded.

B. S Johnson, for appellant.

1. No presumption of negligence arises until it is shown by competent evidence that a spark or coal from one of defendant's engines started the fire. 49 Ark. 540; 33 Ark. 816; 59 Ark. 111.

2. Instruction 2 given by the court was erroneous. It was error to charge the jury "that railway companies are bound to use locomotive engines which are of the safest construction," and "to supply them with the best approved appliances and contrivances," and that a "failure to use such locomotive appliances would be negligence." The exercise of reasonable care is all the law requires. 76 Ark. 132; 114 F. 140; 83 F. 300; 15 Conn 124; 73 Pa.St. 121; 44 Ill. 28; 31 Ind. 143; 18 Kan. 261; 41 Wis. 78; 36 N.J.L. 553; 31 Ia. 176; 61 Ark. 155; 65 Ark. 68; Ib. 101; 55 Ark. 396; 57 Ark. 203; 76 Ark. 69; 76 Ark. 227.

3. The testimony of Frazier as to the duty of the engineer was incompetent.

Taylor & Jones, for appellee.

1. The jury were fully instructed, in the light of the evidence. When the fire that caused the injury is shown to have escaped from the locomotive of the railway company, then the presumption of negligence arises. 59 Ark. 111; 49 Ark. 535; 55 Ark. 163.

2. Instruction 2 as given by the court was correct. 55 Ark. 179. The effect of the instruction is not to make the company an insurer of property against fire. The jury were properly instructed in that respect in instruction No. 1.

3 The testimony of Frazier was competent

OPINION

MCCULLOCH, J.

This is an action against the railway company to recover damages caused by destruction by fire of plaintiff's property, a lot of seed-cotton stored in a house near the railroad track.

It is contended that the verdict is not sustained by the evidence. The facts are similar to those in St. Louis, I. M. & S. Ry. Co. v. Coombs, 76 Ark. 132, 88 S.W. 595, and the principles of law announced in that case are controlling in this. The plaintiff introduced testimony tending to show that the house containing the cotton was discovered to be on fire a few minutes after the engine passed, and there was no other evidence to explain the origin of the fire. The jury were justified, therefore, in finding that the fire was caused by sparks from the engine, which raised a presumption of negligence and placed upon the defendant the onus of exonerating itself. St. Louis, I. M. & S. Ry. Co. v. Coombs, supra.

It is not required that the evidence should exclude all possibility of another origin, or that it be undisputed. It is sufficient if all the facts and circumstances in evidence fairly warrant the conclusion that the fire did not originate from some other cause. Crist v. Erie Ry. Co., 58 N.Y. 638.

The testimony was conflicting as to whether defendant was guilty of negligence in failing to provide proper appliances to prevent the escape of sparks, or in failing to operate the engine with due care. We cannot say that the proof was insufficient to warrant a finding of negligence on the part of appellant.

It is claimed that the court erred in permitting a witness introduced by the plaintiff to state his opinion as to the duty of a railroad engineer in the exercise of due care in handling an engine when passing combustible matter. The witness was shown to have been a practical engineer, who was qualified by experience to testify on the subject. This was not erroneous. The inquiry was as to whether the engineer was guilty of negligence in the operation of this engine, which is alleged to have caused the fire, and it was competent to show by opinions of men experienced in the operation of railroad locomotives the manner in which the same should be properly operated in order to prevent the omission of sparks when passing combustible matter. The court removed all possible prejudice improperly resulting from this evidence by giving the following instructions asked by the defendant: "The court instructs the jury that, unless it is shown from the evidence that the engineer in charge of said train knew, or in the exercise of ordinary care should have known, that there was stored in the said cotton house loose cotton or other highly inflammable material, it was not his duty to shut off his steam in approaching or passing that part of the track along which said house was situated, and he was guilty of no negligence in failing so to do."

The court gave the following instruction over the objection of the defendant, and the giving of the same is assigned as error, viz.:

"The court instructs the jury that railway companies, being authorized by law to use steam in the operation of their trains, are bound to use locomotive engines which are of the safest construction for protection against the communication of fire therefrom to property along the lines of their roads and to supply them with the best approved appliances and contrivances used to prevent the escape of sparks and coals therefrom to the endangering of the property of others, and to use them upon the road with such care and diligence as would be exercised by skillful, prudent and discreet persons having the control and management of them, and a proper desire to avoid injury to the property along the road. The failure to use such locomotive appliances and contrivances, and such care and diligence, on the part of the companies will be negligence, and will subject them to recovery for damages occasioned thereby, provided they occur without the contributory negligence of the owner of the...