Wardlaw v. Southern Ry. Co
| Citation | 122 Miss. 180,84 So. 177 |
| Decision Date | 26 April 1920 |
| Docket Number | 21085 |
| Court | United States State Supreme Court of Mississippi |
| Parties | WARDLAW v. SOUTHERN RY. CO |
March 1920
1 RAILROADS. Negligence in respect to fire started by sparks from engine held for the jury.
In an action against a railroad for loss occasioned by fires caused by its negligence, where the plaintiff proves that sparks were escaping from its engine shortly before the fire was dis covered, and makes proof that the fire caught on the roof of the building next to the railroad, and close to its right of way, and that no fire was in the building at and before the discovery of the fire, and negatives other causes of fire the mere fact that witnesses for the defendant testify that the engine was properly equipped with a spark arrester and was operated carefully will not justify a peremptory instruction for the defendant. It is for the jury to pass on the credibility of the witnesses and on conflicting facts.
2. RAILROADS. Not liable for fires not caused by its negligence.
A railroad company is not liable for fires not caused by its negligence, unless made so by statute; and if the jury believe the testimony offered by it, that it had equipped its engine with a proper spark arrester and other appliances, and that the engine was not negligently operated, then the verdict should be for the defendant, in the absence of a statute making it liable for all fires originating from the operation of its engine.
APPEAL from circuit court of Alcorn county, HON. C. P. LONG, Judge.
Action by J. W. Wardlaw against the Southern Railway Company. Peremptory instruction granted for defendant, and plaintiff appeals. Reversed and remanded.
Judgment reversed, and cause remanded.
W. C Sweat, for appellant.
Under the facts in this case, the question of the negligence of the Railway Company should have been submitted to the jury. It was clearly not a case for a peremptory instruction. From the circumstances developed by the testimony of plaintiff's witnesses, which was not attempted to be rebutted by the defendant, the fire was clearly shown by circumstantial evidence to have been started from the defendant's locomotive.
It has been held by this court, as well as by the courts of Tennessee, in which state this property was situated, that proof that the property was set on fire by sparks emitted from a railway locomotive can be made by circumstantial evidence. Tribett v. R. R. Co., 71 Miss. 212; A. & V. R. R. Co. v. Barrett, 78 Miss. 432; Simpson v. E. Tenn. R. R. Co., 5 Lea, 456; Burke v. L. & V. R. R. Co., 7 Heisk. 451, 19 Am. Rep. 618.
This incident happening in Tennessee, the court held that our statute governing liability of railroads for fire sent out along its right of way did not apply, and that the common-law rule of liability did apply; and under the common-law rule of liability, when the defendant had shown that the engine was properly equipped and properly handled the presumption of negligence arising from the setting out of the fire was overcome and the defendant entitled to a peremptory instruction. However, under the above testimony, it is shown for the railroad company that the engine was not properly equipped, and it is clearly shown by circumstantial evidence that the house was set on fire by sparks emitting from this engine.
The court below held that the law in Tennessee applied and granting that the law as it is in Tennessee does apply the Tennessee courts, in a case almost identical with the case at bar, held that the Railroad Company was liable. Burke v. L. & N. R. R. Co., 7 Heisk. 451.
In that case as in the case at bar, the house which was situated near the railroad company's right of way, had been set on fire by sparks from the railroad company's locomotive, the fire being first discovered on top of the house as in the case at bar, the evidence being entirely circumstantial. The railroad company introduced witnesses to show that the engine was properly equipped and properly handled, as in the case at bar; and the engine inspector testified that the engine was carefully inspected just before the trip was begun and that it was found to be in perfect order, and provided with all the improvements necessary to prevent injury or accident by fire.
Upon cross examination, the witness stated that if the smokestacks were right, they would not throw out any sparks large enough to do damage, and if they did emit sparks of immense quantities, it would be evidence that they were out of repair. Burke v. L. & N. R. R. Co., 7 Heisk. 458.
Under the evidence, the Tennessee courts held that it was proper to submit the question to the jury. To the same effect is the case of Simpson v. R. R. Co., 5 Lea, 456; Sec. 2234 of Thompson on Negligence (2 Ed.), pp. 796-797.
As to whether or not there was negligence on the part of the railroad company, when the defendant had introduced its testimony tending to rebut the evidence, is in nearly all cases a question for the jury. It is well said in Thompson on Negligence (2 Ed.), sec. 2287, pp. 839-840. Furthermore, this court has held that section 1985 of the Code of 1906; sec. 1645, Hemingway's Code, prescribed a rule of evidence. Myers v. Lamb-Fish Lbr. Co., 106 Miss. 776, 64 So. 727; Easterling Lbr. Co. v. Pierce, 106 Miss. 672, 64 So. 651.
This court has further held in the case of Illinois Central v. Thomas, 109 Miss. 534, 68 So. 773, where it is shown that where fire was sent out from the railroad locomotive, negligence would be presumed; and the question is, has the railroad by the testimony which was introduced by the two witnesses, overcome this presumption to such an extent as to leave no doubt as to whether or not the railroad company was negligent and thus entitled the defendant to a peremptory instruction. The appellant says that the railroad company has not met the burden thus thrust upon it by the law.
In the leading case of Tribett v. R. R. Co., 71 Miss. 229, it is shown as was shown here, that when a spark arrester is in good condition and the engine working properly, the sparks which fly from an engine are beaten into minute particles and are rendered harmless. In that case it was shown as in the case at bar, by railroad witnesses that the engine had been properly examined and was properly performing its function and was properly handled, but it was shown by the witnesses that sparks were seen flying from the engine by a party one hundred feet away and that grass was set on fire beyond the right of way. It is shown in the case at bar that sparks were seen flying from the engine between 9:00 and 11:00 o'clock in the daytime and that appellant's house which was fifteen or twenty feet beyond the right of way, was set on fire.
In the case above referred to the court in speaking of the question as to whether or not a peremptory instruction should have been given, used the following language: "This court has further held in the case of Illinois Central v. Thomas, 102 Miss. 534, 68 So. 773, where it is shown that fire was sent out from the railroad locomotive, negligence would be presumed; and the question is, has the railroad by the testimony which was introduced by the two witnesses, overcome this presumption to such an extent as to leave no doubt as to whether or not the railroad company was negligent and thus entitled the defendant to a peremptory instruction. The appellant says that the railroad company has not met the burden thus thrust upon it by the law.
In the leading case of Tribette v. R. R. Co., 71 Miss. 229, it is shown, as was shown here that when a spark arrester is in good condition and the engine working properly, the sparks which fly from an engine are beaten into minute particles and are rendered harmless. In that case it was shown, as in the case at bar, by railroad witnesses, that the engine had been properly examined and was properly performing its function and was properly handled, but it was shown by one witness that sparks were seen flying from the engine by a party one hundred feet away and that grass was set on fire beyond the right of way. It is shown in the case at bar that sparks were seen flying from the engine between 9:00 and 11:00 o'clock in the daytime and that appellant's house, which was fifteen or twenty feet beyond the right of way, was set on fire.
In the case above referred to, the court, in speaking of the question as to whether or not a peremptory instruction should have been given, used the following language:
That the minute particles of coke, which only can escape through a proper spark arrester, as testified by appellee's witnesses, could have been so seen by...
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