Stevenson v. Yazoo & M. V. R. Co.

• Decision Date: 19 February 1917
• Docket Number: 18836
• Citation: 112 Miss. 899,74 So. 132
• Parties: STEVENSON v. YAZOO & M. V. R. CO.
• Court: Mississippi Supreme Court

74 So. 132

112 Miss. 899

STEVENSON v. YAZOO & M. V. R. CO.

No. 18836

Supreme Court of Mississippi

February 19, 1917

Division B

APPEAL from the circuit court of Tallahatchie county, HON. E. D DINKINS. Judge.

Suit by D. B. Stevenson against the Yazoo & Mississippi Valley Railroad. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Cause reversed and remanded.

Ward &amp Ward, for appellant.

Mayes Wells May & Sanders, for appellee.

OPINION

ETHRIDGE, J.

This is an appeal by D. B. Stevenson from a judgment of the circuit court of the Second district of Tallahatchie county rendered in favor of the appellee, who was defendant below. The suit was for trespass for damage to the pasture and premises of the plaintiff caused by a fire which occurred in November, 1914. On the plaintiff's testimony, and some other witnesses introduced by him, it was shown or contended that a section crew of the railroad company set grass on fire upon the right of why of the railroad that burned over and spread to the premises of the plaintiff and burned off the grass and cane growing in his pasture doing damage to the same. It was in proof by the defendant, and by some other witnesses both for the plaintiff and defendant, that there was fire near the complainant's premises, and that there was a general burning in the community; in other words, that the leaves and grass were burning over considerable portions of the community, and the defendant's proof showed that what burning it did on its right of way was to fight against the fire, which was raging without fault of the railroad company, and that the fire was blown across the railroad track and right of way and spread upon the defendant's premises without fault or negligence on the part of the railroad company and its employees; in other wards, there is proof in the record to support a verdict for either party if there was no error in the instructions. In this condition of the evidence the court gave instruction No. 3 for the defendant, which is complained of as error here, which reads as follows:

"The court instructs the jury for the defendant in this case that if you believe from the testimony that on the day in question fire swept the pasture lands of plaintiff and destroyed the grass and cane on the same, came from the south and off the way lands of the defendant and was blown across the tracks by the wind, or was fire that was burning on the same side of the track on which plaintiff's lands are located and was swept by the wind down towards the plaintiff's pasture and on same, and that this fire the defendant had nothing to do with and did not originate, then it is immaterial whether...