Troxler v. The Richmond & Danville R.R. Co.

• Decision Date: 31 January 1876
• Citation: 74 N.C. 377
• Court: North Carolina Supreme Court
• Parties: GEORGE R. TROXLER v. THE RICHMOND & DANVILLE RAILROAD COMPANY.

74 N.C. 377

GEORGE R. TROXLER

v.THE RICHMOND & DANVILLE RAILROAD COMPANY.

Supreme Court of North Carolina.

January Term, 1876.

It is negligence in a Railroad Company to place near its track and suffer to remain there, a pile of old, dry, combustible sills, which, being set on fire by one of the company's engines, communicated the fire to the fence of the plaintiff which was thus burned.

And although there was an intervening fence between the pile of sills and the plaintiff's fence, to which it was joined, which intervening fence caught and was burned, and from which the plaintiff's fence was directly fired, still, if the burning of the sills was the cause of the intervening fence catching fire and the same was directly set on fire by the engine itself, the plaintiff is entitled to recover.

It is no good cause to set aside the verdict of a jury, on the ground, such verdict did not specifically respond to the issues, when the issues (in writing) were handed to the Judge by the defendant's counsel, after the charge of his Honor was concluded, and the jury had risen to retire; and especially when his Honor, after reading aloud the issues, handed the paper to the jury, who did not return it, but whose verdict substantially covered such issues.

CIVIL ACTION, to recover damages for the burning plaintiff's fence, tried at December Term, 1875, of GUILFORD Superior Court, before his Honor, Judge Kerr.

On the trial in the court below, the plaintiff, examined as a witness, testified: That on the 9th of April, 1873, about one hundred panels of his fence was destroyed by fire; that the fence was joined to another fence at nearly a right angle, which latter began about a rail's length from a cattle guard on defendant's road, thence running west for a short distance, when an angle was made, and thence north, bearing away from the line of raid road, which at that point ran northeast and southwest, until it reached the junction with plaintiff's fence, distance about one hundred panels. As to this last one hundred panels, it was stated that the same was on the land of one Chilcut, who said that the fence belonged to the plaintiff; for this reason the plaintiff claimed it; but his Honor held that he had shown no title to this part of the fence, and could not recover damages for its loss. In the opinion of the plaintiff the damage caused by the destruction of the other portion of his fence, amonnted to twenty-five dollars.

One Vanstory, in behalf of the plaintiff, stated that he was at work in a field on the south side of the railroad, on the morning of the said 9th of April, 1873, and that about 10 or 11 o'clock, A. M. the freight train of the defendant passed going to Greensboro; that after it passed and before it was out of sight, he observed fire blaze up at or near the cattle guard; that he at once went to the spot, and found the grass, which had blown up in great quantities around a pile of old sill near the track, and between that track and the fence, as also the sills, all on fire, and the fire making out towards the fence; and that both the sills and fence were consumed.

On his cross-examination, the witness stated, that the fence was an old fence opposite the pile of sills; that he could step over it in places, and that it was grown up with briers and bushes, and that a quantity of what is known as “tickle grass” had accumulated against the fence, as well as around and against the said pile of sills. The witness denied that he had ever stated that there were no sills there.

Other witnesses were examined for the plaintiff, who testified, that on the morning aforesaid, other fires at different points were caused by the same freight train; that they saw the fire at the cattle guard, and that they had noticed the pile of old sills spoken of, and that they were rotten, dry, very conbustible and easily ignited by a spark; and that they were burned on the occasion spoken of.

On behalf of the defendant, one Gibbs testified, that he was an employee of defendant in the shop near Richmond, and examined all engines which were going out on a trip, and on their return; that, hearing of this fire, he examined this engine particularly when it returned to Richmond, and found it in complete order, including smoke stack, spark arrester, &c. Witness described the spark arrester and its use. Stated on his cross-examination, that spark arresters from long, continued use, would wear out. (The engine was purchased from the United States in 1865.)

Mark Adams for defendant testified, that he was an engineer in defendant's employ at the time mentioned and still is; that he did not think he ran the freight train on the occasion of the fire alluded to, still if he was running that train, the engine was in good order; he always examined his engines before starting on a trip. On his cross-examination, he stated that he considered spark arresters a sure preventive against the escape of sparks, though sparks could sometimes be thrown out from ash pans, but they could not get outside the rails.

The section master on that part of the road, stated in his evidence for defendant, that there was no pile of sills at the place spoken of by the witness, Vanstory and others; that there was a pile about seventy-five yards south of the place, and another about one hundred yards north; that he knows the place described by Vanstory,...