Tennessee Cent. Ry. Co. v. McCowan

• Decision Date: 24 February 1945
• Parties: TENNESSEE CENT. RY. CO. v. McCOWAN et ux.
• Court: Tennessee Court of Appeals

188 S.W.2d 931

28 Tenn.App. 225

TENNESSEE CENT. RY. CO. v. McCOWAN et ux.

Court of Appeals of Tennessee, Middle Section.

February 24, 1945

Dertiorari Denied by Supreme Court June 9, 1945.

Appeal in Error from Circuit Court, Putnam County; John D. Holladay Judge.

Suit by W. N. McCowan and wife against Tennessee Central Railway Company for negligently setting fire to inflammable materials on defendant's right of way which fire spread over plaintiffs' lands and destroyed growing timber and other property. Judgment for plaintiffs, and defendant appeals in error.

Affirmed.

Armistead, Waller, Davis & Lansden, of Nashville, H. H. Clark, of Cookeville, and Roberts & Roberts of Nashville, for plaintiff in error.

John W Gill, of Monterey, and E. A. Langford and A. B. McKay, both of Cookeville, for defendants in error.

HICKERSON Judge.

W. N McCowan and wife, Rosetta McCowan, brought this suit against Tennessee Central Railway Company and alleged as their cause of action that defendant permitted combustible materials to accumulate on its right-of-way and near its track which runs through Putnam County, Tennessee, and that these inflammable materials were negligently set on fire by sparks of fire which escaped from defendant's train; this fire spread over plaintiffs' lands and destroyed growing timber, fences and fertilizing materials on these lands; and plaintiffs were greatly damaged thereby.

Defendant pleaded the general issue.

The jury returned a verdict in favor of plaintiffs for $500 and judgment was entered thereon. Defendant appealed in error to this court.

There is only one question before this court: Was there any material evidence to support the verdict of the jury and the judgment of the circuit court; or, stated differently, should defendant's motion for directed verdict have been sustained?

Upon the consideration of a motion made by defendant for directed verdict 'plaintiff is entitled to all legitimate inferences of fact favorable to him which may be reasonably drawn from the evidence tending to support the cause of action stated in his declaration,' Prudential Ins. Co. v. Davis, 18 Tenn.App. 413, 429, 78 S.W.2d 358, 368; and 'the trial judge should take the most favorable view of the evidence supporting the rights asserted by the party against whom the motion is made, and discard all countervailing evidence,' Wildman Mfg. Co. v. Davenport Hosiery Mills, 147 Tenn. 551, 249 S.W. 984, 985.

Facts may be proved by circumstances in civil cases where the circumstances are such as usually attend the fact to be proved, and tend to exclude contrary hypotheses. It is not necessary for such circumstances to exclude all other hypotheses. It is sufficient if one theory is more probable than other theories from the circumstances proved; and it is a question for the jury to decide which theory or hypothesis is the more probable. The question is determined upon a preponderance of the evidence which is submitted by proving the circumstances. Knights of Pythias v. Steele, 107 Tenn. 1, 63 S.W. 1126; Marquet v. AEtna Ins. Co., 128 Tenn. 213, 159 S.W. 733, L.R.A.1915B, 749, Ann.Cas.1915B, 677; Gulf Refining Co. et al. v. Frazier, 19 Tenn.App. 76, 83 S.W.2d 285; Nashville Railway & Light Co. v. Harrison, 5 Tenn.App. 22, 34-36.

There is material evidence to support the following facts in this case: Plaintiffs owned the land in question. Defendant operated a railroad through this section. Weeds, grass and bushes were cut by defendant on this right-of-way and left where they were cut. One witness described this inflammable material as 'hay grass, sage grass.' A freight train operated by defendant passed by the place where this fire was started at 1:50 o'clock on the afternoon of May 3, 1943. There were fourteen freight cars in the train. The conductor was riding in the caboose, which was attached to the rear of the train. The wind was high, and the materials along the right-of-way were dry. There was no fire before the train passed at this place. As the caboose passed the place where plaintiff says the fire originated the conductor saw the fire which he described as 'about as big as a bushel basket little bit of fire in the grass.' Two witnesses were watching the train. They testified they saw no fire before the train passed, but did see the fire as soon as the train passed. The smoke from the engine was very heavy. The fire started right by the side of the railroad track. This fire, which originated at this point, was the fire that subsequently burned over plaintiffs' land. No question is made about the amount of the damage. Being in day time, no...