Louisville & Nashville Railroad v. Miller , 109 Ala. 500 ( 1895 )

McCLELLAN, J.

The complaint in this case claims damages in the sum of one hundred and fifty dollars “caused by fire from the engines operated by the defendant, whereby said sum of $150 damages was caused by said defendant to said plaintiff by reason of said fire, whereby said plaintiff’s fence was destroyed and damaged, also the well house was wholly destroyed, all caused by the negligence of defendant, and by reason of said fire said plaintiff was damaged to the amount of said sum of $150, &c., &c. The defendant pleaded the general issue. We do not understand the averment, such as it is, of negligence in this complaint to have reference solely to the escape of fire from defendant’s engine, nor do we think the complaint oan be so construed, even upon the rule requiring pleadings to be read most strongly against the pleader. The thing which was “caused by the negligence of defendant’’ was the fire which is alleged to have destroyed plaintiff’s fence and well house ; and whether the negligence resulting in the injury complained of consisted of failure to take reasonable precautions to prevent the escape of of sparks from the engine or in allowing the track, roadbed and right of way' to be in such condition in respect of dead and dry grasses upon them as that a fire might be started there by such sparks as inevitably escape from all engines of the kind used on railways in this State, and be communicated thence to adjoining lands. The complaint, in our opinion, counts upon whatever negligence caused the fire to start and to ravage plaintiff’s premises ; and recovery may be had upon proof of any negligence the proximate cause of the injury, whether it be alone in respect of the equipment of the engine for the prevention, as far as way be, of the escape of sparks, or .in respect of the condition of the roadway, whereby it became ignited from fire escaping the engine negligently or not. There is no more room for saying that the plaintiff is confined to proof of negligence as to the escape of fire from the engine than for saying he is confined to proof of improper condition of the roadway; and there is no warrant in the complaint for the conclusion that if he is not confined to the former, then he must be held to have charged negligence in both respects jointly, and put to proof of this double sort of causation. Without any negligence at all on the part of the defendant as to the equipment of its engine or the manner of running it, fire confessedly might have escaped and ignited the beds of dry grass along the roadway. In such case the presence of the grass is the proximate cause of the fire, and if it was there in consequence of the defendant’s negligence, the plaintiff would be entitled to recover, if he proved his case in other particulars. It is indeed because of the fact that fire will escape from the best equipped and'most prudently operated locomotives in sufficient qualities to ignite combustible material along the track that the duty of keeping the roadway reasonably free from such material is imposed upon railway companies; and, as was said by the Virginia court, “the removal of inflammable matter from the line of the railroad track is quite as much a means of preventing fires to adjoining lands as the employment of the most improved and best constructed machinery.” Richmond & Danville R. R. Co. v. Medley, 75 Va. 499, s. c. 7 Am. & Eng. R. R. Cases, 495.

There was evidence that dry grass was allowed to remain on defendant’s roadway opposite plaintiff’s property, that this ignited and communicated the fire to plaintiff’s land, where it burned his fence and well house. There was evidence also that this fire was discovered on the roadway immediately after engine No. 155 had passed along there, and that said engine was emitting sparks. There was also some evidence tending to show that this engine was not properly equipped with appliances for preventing the escape of sparks which would be likely to ignite combustible material along the road, the memorandum of its last inspection before the fire showing that it had no cone, and it being shown that a cone is part of the appliances used for that purpose, its particular office being, it seems, to crush lighted cinders into particles so small that if they escape they are extinguished before falling, or, in any event as to that, they are not likely to produce fires. On this state of facts, with our understanding of the the charge of negligence contained in the complaint, we are of opinion that the trial court did not err in refusing' charges 1, 2, 8, 5, and 6 requested by the defendant, all which proceeded on the ground's either that the negligence charged had reference only to the emission of sparks by the engine, or that it was upon plaintiff to prove negligence both in respect of the equipment or management of the engine and in leaving dry grass on the roadway, or that there was no evidence that the engine was not properly equipped with spark arresting appliances, &c.

Charge 4 of defendant’s series asserts the same proposition in substance that was asserted by charge 4 requested by the defendant in Louisville & Nashville R. Co. v. Reese, 85 Ala. 497, which was there held to have been properly refused; and upon that authority we reach the same conclusion in respect of this charge in the present case.

We do not doubt that the bare fact that there was sufficient dry grass allowed to remain on the right of way for ignition and communication of the fire to adjacent property was evidence. of- negligence on the part of the defendant in allowing it to be there in such quantity. Charge 7 was, therefore, properly refused to the defendant

A -fault of charge 8 sufficient to justify the court’s refusal of it lies in its failure to hypothesize equal means of knowledge on the part of the witnesses whose testimony the court is asked to compare, and to draw a certain conclusion from the comparison for the enlightenment of the jury.

The charges given for the plaintiff are all in consonance with the view of the law we have indicated. It is common knowledge that in the latitude of Morgan county, where this fire occurred, Bermuda grass'is not in a green and growing State in the month of February. If, as the evidence tends to show, there was sufficient quantity of this grass on the roadway of the defendant at that time be ignited by sparks from passing engines and to communicate the fire thus started to adjoining lands, it was negligence of the defendant not to have removed it in the three or four months during which it must have been there in a dry and combustible state. We can not agree with counsel that the fact that such dead grass may at times during the fall and winter be wet from rains, and hence incombustible, can at all excuse the failure of the company to remove it, for only a day or two of dry weather after even prolonged rains is quite sufficient to restore its combustibility ; and it is, we think, a clear misconception of the measure of the company’s duty to impute negligence to in this respect only for failing to remove the grass after a dry period has set in. Even in winter,and especially in the fall, such periods with us are the rule rather than the exception, and the duty of railway companies must be measured accordingly. The court did no err in giving any of the charges requested by plaintiff.

The court allowed defendant to adduce direct testimony to the effect that in point of fact, engine 155 had a cone, notwithstanding the reports of inspection to the contrary. This was all the defendant was entitled to in this connection. There was nothing to explain about the “marks opposite this engine in the column of the report headed ‘no cone, ’ ” unless it be allowable to show that “ditto” does not mean ditto, that the marks as here used do not mean ditto, or the same as the item or items next above them, and that the words “no cone” in describing the condition of an engine mean that it has a cone, which it clearly does not.

The court, however, erred in allowing the plaintiff to propound to the witness Wise this question : “State whether or not you have had any fence or any property burned by the railroad,” and also in allowing the answer: “I had some fences burned once or twice. Supposed to have been done by the L. & N. R. R. Co. They were right along by the railroad,” to go to the jury. It’is not hypothesized in this question, nor does it appear by the answer, that the fires inquired and testified about occurred near the tiipe of the fire alleged to have damaged the plaintiff, nor at or near the same place, nor that it caught from sparks emitted by the engine or from an engine at all, nor that the engines were like the one used on this occason, nor that the fire began on the roadway and spread to witness’ property, nor indeed that any of the circumstances of this fire were present on the occasion of the other. And this witness’ further testimony showed that these fires occurred ten or twelve years before the fire involved in this suit. This testimony, moreover, does not even tend to show that these long ago fires were caused by the railroad company. We are unable to see how this testimony could have afforded any legitimate inference pertinent to this case, yet it might, and probably did, have some undue influence with the jury in determining whether the defendant caused the fire here under inquiry See authorities cited by appellant’s counsel.

For the error committed in allowing this testimony to go to the jury, the judgment of the circuit court must be reversed. The cause is remanded.