Tribette v. Illinois Cent. R. Co.

• Decision Date: 20 November 1893
• Citation: 13 So. 899,71 Miss. 212
• Court: Mississippi Supreme Court
• Parties: W. H. TRIBETTE v. ILLIONOIS CENTRAL RAILROAD CO

13 So. 899

71 Miss. 212

W. H. TRIBETTE v. ILLIONOIS CENTRAL RAILROAD CO

Supreme Court of Mississippi

November 20, 1893

FROM the circuit court of the first district of Hinds county, HON J. B. CHRISMAN, Judge.

The facts illustrating the main question passed on by the court are sufficiently stated in the opinion. The evidence of the witnesses, Fitzhugh, Downing and Hester, the admission of which is held to be error, was to the effect that at various occasions about the time of the fire they had seen sparks emitted from engines of the defendant, which flew over adjacent buildings. The engines were not shown to be either of those in controversy here.

One Covington, a witness for plaintiff, was permitted, over defendant's objection, to testify that about three or four o'clock in the afternoon of the day the fire occurred an engine on defendant's railroad, running by his farm a mile north of Terry, had set fire to grass on or near the track. The witness could not identify the engine as either of those in controversy, or even definitely fix the hour when he first discovered the fire spreading out from the track of the railroad.

The sixth instruction for plaintiff, which this court holds is open to criticism, is as follows: "The jury will decide the case from the preponderance of the evidence before them and are not required to believe any facts beyond a reasonable doubt."

Reversed and remanded.

Calhoon & Green, for appellant.

There was no error of law in the first trial, and the verdict of the jury settled two questions of fact: (1) That the cotton was ignited by sparks from one of defendant's engines and (2) that the defendant had not met the burden of showing that it was free from negligence in reference to equipment and management of its engines. The question as to the company's negligence in leaving so much cotton stored on its platform was excluded from the consideration of the jury. It is therefore immaterial whether it was right or wrong to admit the testimony of Dr. Jones. But this evidence was admissible to show that the company had notice that the cotton was a menace to the town. Plaintiff could not foresee but that the defendant might take the position that it, was not within ordinary contemplation that the burning of the cotton might destroy the town. It was competent to show that this danger was brought within the contemplation of the parties.

It is well settled that railroad companies must use the ordinary care of an expert railroad man in keeping its right of way clear of combustible materials. 6 Mont. 580. And they cannot shield themselves behind the facts of very dry weather and high winds. They must provide for such contingencies. 8 Am. &amp Eng. Enc. of L., 12-14. It is gross negligence to have inflammable materials on the right of way. 75 Va. 499; 110 Ind. 538; 66 Wis. 161; 2 Shearm. & Redf. on Neg., 678; Ray on Neg. of Imposed Duties, 151.

It devolved on the company to show that it had good locomotives, of approved pattern, in good condition at the time, and were managed by competent operatives and with proper care. Insurance Co. v. Railway Co., 70 Miss. 119. It must have the best and most approved appliances, and must employ competent and skillful servants. 8 Am. & Eng. Enc. L., 5. The proof failed to show any of these requisites. There was no pretense of showing that it had the best and most approved appliances, and that they were operated with due care under the circumstances, and by competent and skillful servants.

It was not necessary for plaintiff to show what particular engine started the fire. It was sufficient to show that some engine of defendant did so, and this may be shown by circumstantial evidence. 9 Nev. 271; 91 U.S. 454. It may be shown that defendant's engines emitted sparks causing fires both before and after the fire. 131 Mass. 469; 79 Pa. 405; 93 Ib., 449; 144 Ib., 461; 6 Mont. 581; 58 Wis. 335; 7 Heis., 451; 2 Shearm. & Redf. on Neg., §§ 674, 675. The evidence of other fires was entirely competent in chief, especially as plaintiff showed there was no other apparent cause for fire. It was clearly admissible by anticipation to show imperfect and unsafe locomotives.

The first verdict should stand, on the ground that the railroad company is liable, however the fire may have originated on their platform. It was negligence per se to have it there, unprotected by guards, tarpaulins, or otherwise, and with no appliances at hand for the extinguishment of fires. The question of storage at public stations is one of grave public concern. The danger from accumulation of cotton at these stations is so menacing that, on the application of town authorities, the courts should abate them as nuisances. Green v. Lake, 60 Miss. 451. Even if thoughtless boys set the cotton afire, it is plain that the cotton was a standing invitation to boys to play on it. The company would be liable for loss of the cotton, if burned while on an open, unprotected platform. The same rule should be applied that is applied to inflammables in process of transportation. Liability has been enforced in the case of a hay-stack liable to spontaneous combustion. 2 Shearm. & Redf. on Neg., 531, note 2 and cases there cited; and so in the case of gunpowder. There is no difference between these instances and the case at bar. 54 Am. Rep., 547; 46 Ark. 207; 52 Ib., 402. Where inflammable substances are burned on a railroad company's right of way, causing loss to others, it is no defense that the engines were skillfully handled. 2 Thomp. on Neg., 1087; Wood on Nuisances, § 142; 106 Mass. 458; 93 Ind. 452; 13 Broom, 189; 46 Pa. 192. We call special attention to Marine Insurance Co. v. Railroad Co., 41 F. 643. See, also, 1 Suth. on Dam., 51; 3 Ib., 2270; Cooley on Torts, 670; 39 N.J. L., 299; 74 N.C. 377; 40 Cal. 14; 67 Tex. 685; 59 Mich. 440; 110 Ind. 538.

It was competent to show that other fires were set by the same engine on the same day. Shearm. & Redf. on Neg., § 333; Redf. on Railways, 453; 139 U.S. 223; 56 Barb. 72; 62 Me. 240.

Whether the storage of the cotton was a public or private nuisance, we regard it clear that the defendant was liable, and that regardless of how the fire started. But if the question be viewed as one of fact for the jury, the evidence overwhelmingly establishes that the company was guilty of negligence. Whether its engines were properly equipped or not was a question of fact that must be deemed settled against it by the verdict. It is conceded that all engines throw more or less sparks. It was therefore the duty of the company, in view of the circumstances here, to take special care to prevent the communication of sparks to the cotton.

That the court erred in granting the peremptory instruction on the last trial, must appear from the argument and authorities cited above. The error in taking the case from the jury seems too patent to require argument.

Williamson & Potter, on the same side,

Filed a lengthy brief and written argument devoted mainly to a discussion of the evidence, to show that the fire was communicated from one to the other of defendant's locomotives, and that the facts and circumstances show negligence on the part of the defendant and in the character, equipment and handling of said engines.

On the points of law passed on by the court, counsel made the following points: It was error to exclude the testimony of Covington as to the setting fire to grass on the right of way just before the train reached Terry. 29 Minn. 12; 58 Wis. 335; 80 Mo. 573; 93 Pa. 449; 13 Mass. 469; 8 Am. & Eng. Enc. L., 9; 29 Kan. 654. The testimony, in any view, was competent to rebut the attempted showing by defendant that the engines were well equipped and were carefully handled. The evidence on the last trial was substantially the same as on the first. If it was proper for the case to go to the jury on the first trial, it was error to grant the peremptory instruction on the second. In any view, it was error, because the court had no authority to find the facts from the contradictory evidence.

We insist that the first verdict should be re-instated. The testimony of Dr. Jones, that he warned the station agent of the danger of fire from accumulating cotton, was competent. He merely warned him of the danger, which did exist as shown by the proof. The fire did actually occur. The law required defendant to be careful of danger. How, then, can it be prejudiced by the fact that a citizen or the mayor of the town warned the agent of the very danger the company was required to guard against.

As to the competency of Jones, Covington and Harvey as to other fires, see, in addition to the authorities above cited, 7 Heis., 451; Redf. on Railways, 453; 139 U.S. 223; 82 Ala 105; 46 Pa. 192; 62 Me. 240; Shearm. & Redf. on Neg., § 674, 675. See also, as to the competency of the testimony of Downing, Fitzhugh and Hester as to other fires at Terry, and at the very place where this fire occurred, and within a week of the time, 58 Wis. 395; 93 Pa. 449; 7 8. E. Rep., 236. That the season was dry and the weather windy, increased the danger of fires, and greater care should have been exercised. Whart. on Neg., 865; 41 Ind. 228; Whittaker's Smith on Neg., 70. It is gross negligence to have inflammable material on the right of way, or on the platforms owned and controlled by the company, dangerously near the right of way and exposed. 75 Va. 499; 66 Wis. 161; 2 Shearm. & Redf. on Neg., 678; Ray on Neg. of Imposed Duties, 151. The foregoing authorities hold that other fires set by other locomotives of the defendant may be given in evidence. The burden devolved on defendant, by our statute, of showing a want of negligence--that is, that its locomotives were handled in a careful manner--must be met by direct evidence. Evidence of usage...