Sullivan Timber Co. v. Louisville & N.R. Co.

• Decision Date: 30 June 1909
• Citation: 163 Ala. 125,50 So. 941
• Parties: SULLIVAN TIMBER CO. v. LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

50 So. 941

163 Ala. 125

SULLIVAN TIMBER CO. v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

June 30, 1909

Rehearing Denied Dec. 16, 1909.

Appeal from Circuit Court, Mobile County; Samuel B. Brown, Judge.

Action by the Sullivan Timber Company against the Louisville &amp Nashville Railroad Company. From the judgment, plaintiff appeals. Affirmed.

McClellan Mayfield, and Sayre, JJ., dissenting in part.

The facts in this case may be found in a former report of the case under the style of Louisville & N. R. R. Co. v Sullivan Timber Co., 138 Ala. 379, 35 So. 327. For the purpose of this opinion, it is deemed necessary to set out count 6, which is as follows: "(6) The plaintiff, for amendment to its complaint in this cause, and as a part of each count herein set forth, avers that heretofore, and at the time of the matters and things complained of, it was possessed of certain lands and premises in the city and county of Mobile, in the state of Alabama, and upon which was located its sawmill, dry kilns, sheds, offices, and other buildings, and on which premises it had large quantities of lumber, shingles, wagons, and other valuable property, which said property was bounded on the west by Water street, and that on the eastern line of said Water street was located its offices and a lumber shed, the western side of which kiln was constructed of plank; and the defendant was, prior to and at the time aforesaid, possessed of a certain railroad track and a right of way along and over said Water street, in said city of Mobile, and in front of said plaintiff's premises which said railroad track was at said time within 30 feet of said plaintiff's land and premises, and upon which said railroad track the defendant ran and operated its engine, locomotive, and cars by steam power. And plaintiff says that on, to wit, the 29th day of September, 1896, fire escaped from a locomotive engine which was then being run by defendant along said Water street in front of plaintiff's said premises, and was communicated to plaintiff's said premises, and that thereby the following property of plaintiff thereon was burned and destroyed: [[[[Here follows description of property.] And plaintiff was thereby damaged in the amount of $25,000, for which it brings this suit. And it avers that until the same was cut down by defendant's servant there was growing upon said Water street, between plaintiff's said premises and said railroad track, grass and weeds, and that on, to wit, the 24th day of September, 1896, a large quantity of such grass and weeds was cut down by defendant's servant under its direction, and was by them negligently and wrongfully thrown towards and near plaintiff's said office, and the side of its said shed, and was by defendant negligently and wrongfully allowed to be and remain near plaintiff's said premises, and that said such grass and weeds there became dry and inflammable. And plaintiff avers that the fire so escaping from defendant's locomotive as set forth above fell into and ignited such dry grass and weeds, and thence was communicated to plaintiff's said property, and destroyed and damaged its property, all as set forth above."

Plea 2 was as follows: "(2) To the sixth count, filed as above, the defendant says that the west line of plaintiff's lumber shed on the east side of Water street was constructed of inflammable boards, set upright, with cracks between them, and that said shed was covered with wooden timbers, and was so situated that, should combustible material lying in Water street and opposite thereto be set on fire, said shed would be in great danger of being burned; and the remainder of said property mentioned in said counts of the complaint was so situated as to be in great danger of being burned should said shed be set on fire, all of which was well known to plaintiff before the matter and things complained of. Defendant's engine passed said property frequently on each day, and fire frequently escaped therefrom and fell upon that portion of Water street that was opposite the plaintiff's premises, which said fact was well known to plaintiff. And defendant further avers that plaintiff knew that defendant's servants had negligently thrown a large quantity of grass and weeds towards and near plaintiff's office, and the side of the said shed, and that defendant had negligently allowed it to be and remain near plaintiff's said premises, and that said grass and weeds were dry and inflammable, and that there was danger of fire escaping from defendant's locomotives, or some of them, and falling into and igniting such dry grass and weeds, and of thereby communicating fire to plaintiff's premises and destroying and damaging its property, unless such weeds and dry grass was promptly removed, and the plaintiff nevertheless allowed the said dry grass to be and remain in said street and near its said premises, which said negligence on the part of the plaintiff proximately contributed to the damages in said counts complained of."

The following demurrers were filed to plea 2: "(1) Because said plea shows that said defendant's servant negligently put said grass and weeds and inflammable matter near plaintiff's property and caused the dangerous condition to exist, whereby the fire escaping from defendant's engine set the said inflammable matter on fire. (2) Because it was not incumbent on plaintiff to remove the dangerous condition in said plea mentioned, created by the negligence of defendant's servant. (3) Said plea shows that said dangerous condition which proximately contributed to cause the damage complained of was brought about by the negligence of defendant's servant."

L. & H. E. W. Faith and R. H. & N. R. Clarke, for appellant.

Gregory L. Smith and Joel Goldsby, for appellee.

McCLELLAN J.

The status, in pleading and in fact, of this case, will be found accurately set down in the report of this litigation on former appeal. L. & N. R. R. Co. v. Sullivan Timber Co., 138 Ala. 379, 35 So. 327. The chief question argued on this appeal concerns the ruling of the court below, following the decision of this court on the other appeal, affirming the sufficiency of plea 2, against the demurrers assigned, as a defense to the sixth count of the complaint. The sixth count averred that the negligence consisted in the negligent accumulation by the defendant, of combustible material alongside or near to the defendant's roadway. The former ruling, in this case, was but the application of the principle announced in Lilley v. Fletcher, 81 Ala. 234, 1 So. 273. A careful re-examination of the principle, as applicable to the case at bar, confirms the soundness of the ruling made, in this regard, on the former appeal.

None of our adjudications, pressed upon us by counsel for appellant, relate to the application of the principle to this character of controversy as that principle was first set forth and applied in Lilley v. Fletcher, supra. The soundness of the principle that one, aware of another's wrong likely to lead to his injury, cannot remain inactive to avert such injurious consequences so known, and then claim recompense for an injury proximately flowing therefrom, cannot be reasonably questioned. It is grounded in evident duty. Besides, if it be ignored in a case presenting a breach of it, the doctrine of proximate cause as an unvarying condition to a recovery of damages for an injury suffered would probably be seriously qualified. The distinction that must be taken between the principle under consideration and that announced and applied in the Marbury Case, 125 Ala. 260, 28 So. 438, 50 L. R. A. 620, is that the latter affirmed the absence of duty on a proprietor to anticipate negligence on the part of the carrier, whereas here the plea 2, to the sixth count, asserts a duty arising out of an act of negligence already committed. The soundness of the ruling in L. & N. R. R. Co. v. Miller, 109 Ala. 500, 19 So. 989, is not impugned by the holding made in this case on former appeal; for the reason, among others, that in Miller's Case the defense here interposed by plea to the sixth count was not presented. Plea 2 to the sixth count was proven beyond dispute, and hence the affirmative charge on that count was due the defendant.

The third count of the complaint ascribed the destruction of the plaintiff's property to the negligent communication of fire directly thereto from a...