Louisville & Nashville Railroad v. Marbury Lumber Co. , 132 Ala. 520 ( 1902 )

HARALSON, J.

— 1. The principle is well established in this court as a rule of evidence, that in an action against a railroad company to recover damages resulting from fire alleged to have been caused by the negligent escape of sparks from a locomotive running on defendant’s road, the burden is on the plaintiff, in the first instance, to show that the fire was caused by sparks emitted from defendant’s locomotive, and when it is shown that the fire was. thus caused, which is, when disputed, always a question of fact for the jury, the mere communication of the fire from the railroad engine, is of itself sufficient to- raise a presumption of negligence against the company. With this prima facie proof of defendant’s liability raised in plaintiff’s favor, the burden is then devolved upon the defendant of showing that the engine alleged to have caused the fire was properly constructed, was equipped with approved devices and appliances to prevent the escape of'fire and sparks, was in good repair and prudently managed and controlled; and upon proof of these facts by the defendant, the presumption arising from the mere communication of fire from the engine is rebutted, and the plaintiff cannot recover, without making proof of other specific acts of negligence or want of care on defendant’s part.—L. & N. R. R. Co. v. Reese, 85 Ala. 497; L. & N. R. R. Co. v. Marbury L. Co., 125 Ala. 237.

2. The cotton destroyed was situated in a pen on the right hand or north side of the railroad running towards Birmingham from Montgomery, at which point, it appears the track ran east and west. The pen was about 50 feet 6 inches from the center of the track. A freight train had, only a few minutes before, passed up; when the cotton was discovered to be on fire. The train, as the evidence tended to show, was a short one, consisting of about fifteen cars attached to the engine, the grade was ascending at the point, the train was moving rapidly, and the engine was emitting an unusual quantity of sparks, larger than engines generally emit; that the day was clear and rather windy, the wind blowing in the direction of the cotton, — from a southeastern direction and in a northwesterly direction, and there was no fire in any of the houses or structures near the cotton. Here, the witness testifying to these facts for plaintiff, was asked: “Had it been raining the day before the accident, or had it been dry weather?” to which question, he replied, that the weather had been clear for several days. The defendant objected to the question on the ground that it was irrelevant, Incompetent and inadmissible, shedding no light as to what condition the engine was in. The objection was properly overruled. The burden was on the plaintiff, to introduce evidence, to show that the fire originated from the passing engine, and any circumstance tending to show that it did thus originate was competent. The proof of how the fire originated ivas entirely circumstantial. If the weather had been clear and dry and not rainy, for several days previous to the accident, it was a circumstance competent to be considered, in connection with the other evidence, as tending to show that the fire might have originated more readily from the engine, and did so originate, and that if the weather had been rainy and damp, the fire might not have so readily been communicated to the cotton by sparks, the distance it was away from the engine.

3. The witness, Bledsoe, testified that he was within 6 or 8 feet of the track when the engine passed] that there were a good many sparks coming out when the train passed, and a heap- of them fell on the platform of the store near-by, and were about the usual size. He was asked, “Was it a light train ór a heavy train?” He answered that it was a light train, and in answer to another question, he did not count the cars, but there seemed to be 14 or 15 of them. The defendant objected to the question on the grounds that it called for incompetent and irrelevant evidence, and because the-character of the. train had nothing to- do with the condition of the engine. While the latter objection, — the one relied on to show the incompetency of the evidence, — may in point of fact have been true, whether the train was a light one or a heavy one, in the number of cars of which it consisted, yet if it was a heavy train, consisting of a great number of cars, it is common knowledge that it would have required a greater expenditure of effort, so to speak, on the part of the engine, and a greater exhaust of steam by it, especially when moving rapidly, up grade, than would-have been the case, if the train were a short one, requiring less power to move it, a condition when fewer and smaller sparks would likely be emitted, than if the engine were drawing a heavy train'. The number and size of tbe sparks was a circumstance to be considered in determining wh.eth.er the train was properly equipped and handled.

4. Beckett, as an expert witness for defendant, testified as to the construction of engines and appliances for preventing the escape of sparks — stating that there had been some changes in material in them, during the past twenty year’s, and they had been trying to better them but had not succeeded; said that what he called standard netting was the same as it was the first time he saw a spark arrester, about 20 years ago; that sometimes the netting ha,d to be cleaned, and a man would pound it with a piece of iron. He was asked on the cross by plaintiff in this connection, “Is not that iron liable to increase the size of the spaces?” He answered, “Not unless it is punched; they merely take a piece of iron and jar it out of the netting, and this would not affect the netting unless they punched a hole through it.” There was no proof that the netting had been punched, and if there was error in allowing the question, it Avas error without injury, since the question as asked was not ansAvered, and the answer given, was entirely without prejudice to defendant.

5. Woods, the engineer aaNo handled the train at the time of the accident, testified for defendant that the more force that was use d, the greater the number of sparks, and that he was running 25 or 30 miles an hour, AA'lien he na,L«ed Bozeman — the place the fire occurred. He Avas asked by plaintiff in this connection, — “Now is it not a fact that your train was running behind time, and that you were running faster to malee up that time?” The defendant objected on the ground that the evidence called for was incompetent, irrelevant and inadmissible. In Perdue v. L. & N. R. R. Co., 100 Ala.. 539, the court stated, that as a matter of law, it cannot be said that any rate of speed of a railroad train, away from those places where the statute regulates it, is negligence per se, and that, whether or not rapid running, at points not regulated by statute, would be negligence, would depend upon the conditions under which it might be maintained. Nor was the fact of being late and running behind time evidence per se of negligence. N. & W. R. Co. v. Ferguson, 79 Va. 241; N. Y. & P. R. Co. v. Kellan, 83 Va. 851. But it has been held, in an action for damages for fires alleged to have been caused by a locomotive, that the excessive use of steam is a fact competent to be considered, in determining whether or not the company exercised due diligence in the operation of the train, and on the question .as to whether the fire occurred by reason of sparks from the engine.—McCormick v. C. R. & I. Co., 41 Iowa, 193; Home Ins. Co. v. P. R. Co., 11 Hun., 182; U. P. R. Co. v. DeBusk, 12 Colo. 294. The witness did not answer the question in full, but replied, simply, “I was late,” without stating that he Avas “running behind time,” and AAras “running fasten" to make up that time,” as he was asked. The answer he made, did not, Avithout more, imply that he was making up time and running faster in order to do so. It Avas neither favorable nor unfavorable to either party, and, even, if the question ought not to have been alloAved, it Avas Avithout injury to defendant.

6. Thornton, a Avitness for plaintiff, had testified that the engine Avhen it passed emitted sparks as large as the end of his little finger, and Billingslea, that the sparks were as large as a coav pea. Gross, a Avitness for the plaintiff, an experienced engineer, testified that he had heard all the testimony in the case about the fire, and how the engine was equipped. He was asked: “If the netting to that engine Avas such as has been testified to here, and it was in good repair and condition, Avould it throAV out, sparks as large as the end of your little finger?” The defendant objected on the ground that there was no testimony that the sparks Avere as large as the little finger of Avitness. Thornton and Billings-lea Avere alloAved to be recalled, each of whom exhibited his little finger to the Avitness. The witness did not answer the question. But, he Avas asked another question, "Do you know Avhat size sparks Avould emit?” He answered that no engine in proper condition should have thrown sparks as large as a cow-pea, and as large as a pin head, and to this question and answer no objection was made. We find no error here. ■ ■

7. The court gave several charges requested by defendant, and refused several. The vices of those refused, without reviewing them separately,, will appear. We have examined them, and conclude they were properly refused.

A motion was made for a new trial, based on rulings assigned as errors and which we have been considering; It was overruled and we find no occasion for disturbing the verdict and judgment.

Affirmed.