Deason v. Alabama Great Southern Ry. Co. , 186 Ala. 100 ( 1914 )

SOMERVILLE, J. —

Where the plaintiff has shown that his property was burned by fire caused by sparks from a locomotive operated by the defendant railroad company, a prima facie case of negligence is thereby established, and the plaintiff may recover, unless the defendant shows itself free from negligence in the construction, equipment, or operation of its locomotive, or in the condition of its right of way, if the fire is first started there.—L. & N. R. R. Co. v. Reese, 85 Ala. 497, 5 South. 283, 7 Am. St. Rep. 66; Louisville & N. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 South. 438, 50 L. R. A. 620; Id., 132 Ala. 520, 32 South. 745, 90 Am. St. Rep. 917; So. Ry. Co. v. Darwin, 156 Ala. 311, 47 South. 314, 130 Am. St. Rep. 94; 33 Cyc. 1361.

In the present, case the affirmative instruction for the defendant was evidently founded on the trial court’s conclusion that there was nothing in the evidence to justify any reasonable inference that the fire was in fact caused by one of defendant’s locomotives.

The mere fact that a fire occurs on premises adjacent to a steam railroad track, even just after a train has passed along, would not of itself support an inference that it was caused by sparks escaping from the locomotive.—So. Ry. Co. v. Dickens, 161 Ala. 144, 149, 49 South. 766; So. Ry. Co. v. Collins, 179 Ala. 335, 60 South. 95.

It is, however, a matter of common knowledge that locomotives carry fire and emit sparks, especially when a heavy load and a steep grade require an extraordinary working of the steam exhaust. It is a matter of common knowledge, also, that a strong wind may carry such sparks to a considerable distance, and that they may readily set fire to any dry and inflammable materials upon which they happen to fall. If then, in addition to the passage of a locomotive at a seasonable hour preceding the fire, it is made to appear that a strong wind was blowing from the railroad towards the house, that the weather was very dry, and the roof of the house at any point in a condition easy to ignite, that the fire originated in the roof at such a point, and, further, that there was and had been no fire within or about the house for 12 hours or more, thus excluding any relational possibility of the domestic origin of the fire, we think that the imputation of the fire to sparks from the locomotive is fairly removed from the realm of mere speculation, and is brought fairly within the realm of legitimate and permissible inference.

It may be urged that the evidence does not show the passage of a locomotive sufficiently near to the time of the discovery of the fire — about 1 o’clock, a. m. — to justify the inference of such an origin. One of the witnesses, returning from a hunt on the night of the fire, saw an engine pulling a train heavily up the .grade towards the north, and emitting quantities of sparks. This train stopped on the station side' track. He roughly estimated the hour as being 10 or 11 o’clock, p. m. Another witness was awakened by a train pulling heavily and going in the same direction at an hour thought to be about 12 o’clock. An inmate of the house was awakened at some unknown hour before the fire by a train going north. And several of the witnesses saw a train pull out to the north while the fire was burning. It may well be that all of these were observing or hearing the same train, and the one that the witness Frank saw emitting sparks while it was pulling heavily and “about to stall” as it was passing near the plaintiff’s house.

On the whole evidence we are constrained to the view that whether or not one of defendant’s locomotives communicated sparks to plaintiff’s house, and caused its destruction by fire, was a question that ought to have been submitted to the jury, and that there was error in instructing the jury to find for the defendant. The following authorities illustrate the general question of the sufficiency of circumstantial evidence to show prima facie that a neighboring firé was due to sparks from a passing locomotive: Sheldon v. Hudson River R. Co., 14 N. Y. 218, 67 Am. Dec. 155; Minneapolis, etc., Co. v. Great North. R. Co., 83 Minn. 370, 86 N. W. 451; Gibbons v. Wis. Valley R. Co., 66 Wis. 161, 28 N. W. 170; R. A. 350, 13 Am. St. Rep. 221; Henderson v. P. & R. Ry. Co., 144 Pa. 461, 22 Atl. 851, 16 L. R. A. 299, 27 Am. St. Rep. 652; Dunning v. Maine Central R. Co., 91 Me. 87, 39 Atl. 352, 64 Am. St. Rep. 208; Clark v. Gr. Tr. West. Ry. Co., 149 Mich. 400, 112 N. W. 1121, 12 Ann. Cas. 559; Babcock v. Can. North. Ry. Co., 117 Minn. 434, 136 N. W. 275, Ann. Cas. 1913D, 924.

We think it was permissible for plaintiff, in order to more accurately fix the hour of the night' when the witness Frank returned from hunting and saw the engine going north and emitting sparks, to ask him as to the hour of his departure from home on that night. This was in no sense an attempt to contradict the witness, but rather to supplement a confessedly inexact estimate with .data which might have been of much value to the jury upon a very important issue in the case.

For the errors noted, the judgment will be reversed.

Reversed and remanded.

Anderson, C. J., and Mayfield and Gardner, JJ., concur.