Louisville & Nashville R. R. v. Stanley , 186 Ala. 95 ( 1914 )

ANDERSON, C. J. —

Count 3 of the complaint was not subject to the defendant’s demurrer. While it avers that the ginning plant was set fire to by sparks from a locomotive on defendant’s track, and does not aver that the locomotive was owned or operated by the defendant, the said count further avers that said plant was negligently set fire to and destroyed by the defendant, and which, of course, charges the defendant with responsibility for the instrumentality causing the fire.

The suit was against.this defendant jointly with the North & South Railroad, but the said North & South Railroad was eliminated by an amendment to the complaint, which said amendment is set out and numbered as a part of the pleading, and is definitely referred to in the judgment entry. The amendment was authorized under section 5367 of the Code of 1907.

There was proof from which the jury could infer that sparks from a certain engine of the defendant set fire to the plant, and, while the defendant’s evidence showed that the engine was in proper condition as to spark arrester, etc., and was properly handled at the time, there was evidence on the part of the plaintiff that said engine when passing the place of the fire, and, when nearly opposite the gin, was emitting large and unusual quantities of sparks, and this was sufficient to take the case to the jury. As has been held by this court, when the defendant shows a properly constructed and equipped engine, and that it was properly handled, it is entitled to the general charge, unless this evidence is rebutted in some way by evidence tending to show that such was not the case. It has also been held that proof only of the emission of a large quantity of sparks is not sufficient to carry the case to the jury.—Farley v. M. & O. R. R., 149 Ala. 557, 42 South. 747; L. & N. R. R. v. Marbury, 125 Ala. 237, 28 South. 438, 50 L. R. A. 620. But, when the proof shows that sparks of an unusual quantity or of an unusual size were emitted, this is some proof either of a defect in the engine or an improper handling of same, and should take the case to the jury. Indeed, the distinction between a “great deal” of sparks and sparks in unusual quantities, or of an unusual size, was made in the Farley Case, supra, wherein it was stated: “The latter would afford reasonable inference of defective equipment or of unskillful handling of an engine, while the former Avould not.” There was no error in refusing the general charge requested by the defendant.

We have examined each of the defendant’s refused charges as are sufficiently argued and discussed in brief of counsel, and think that the refusal of same was free from reversible error.

There was no error in permitting the plaintiff to prove, by the witness Ellis, that the defendant was paying his expenses at the trial.—Moore v. N., C. & St. L. R. R., 137 Ala. 495, 34 South. 617; A. G. S. R. R. v. Johnson, 128 Ala. 283, 29 South. 771.

The trial court committed no reversible error in permitting plaintiff to ask the witness Hitch if he ever heard of an engine setting fire to a building 110 feet from a railroad track.

The judgment of the circuit court is affirmed.

Affirmed.

McClellan, Sayre, and Somerville, JJ., concur..