Mardis v. Yazoo & M. V. R. , 115 Miss. 734 ( 1917 )

Holden, J.,

delivered the opinion of the court.

This is an appeal from the judgment of the circuit court of Jefferson county, in which court the plaintiff below, appellant here, sued the defendant Railroad Compauy for damagtes on account of causing' his storehouse and contents to he destroyed by fire thrown from its locomotive No. 37 on January 21,1915. There was a jury verdict, and judgment for the defendant railroad company in the lower court, from which judgment this appeal is prosecuted here.

Briefly stated, the facts shown in the lower court were as follows: Appellant, Mardis, plaintiff below, owned the storehouse at Stampley, Miss., which was situated near the right of way of defendant railroad company, about fifty feet from the track, and the store contained a stock of goods. In the early morning, January 21, 1915, between one and two o ’clock, shortly after engine 37 had passed, it was discovered that this storehouse was on fire, it appearing that the fire started at the front end of the store, burning rapidly and totally destroying it. At the trial in the lower court the plaintiff introduced several witnesses, who testified that they lived near the railroad track and that they had, a few days before the fire occurred, noticed and observed that engine No. 37, the one which is supposed to have set out the fire, was frequently throwing fire and burning cinders, of large size, from its smokestack along the right of way as it passed on several occasions.. One witness for the plaintiff testified that he was at Stampley on the night of the fire, and that while he was 'standing close to the railroad crossing at Stampley near the store that was burned, about thirty minutes before the store was seen on fire; he noticed engine No. 37 pass through Stampley, throwing large sparks and lumps of fire as large as his finger from the smokestack, and that the wind was blowing strong from the direction of the engine toward the store building at the time the said engine No. 37 was passing by the store building, which was seen on fire about thirty minutes thereafter. The building and gallery were covered with galvanized iron, but was otherwise exposed to fire, as appears in the testimony.

The defendant railroad company introduced several witnesses who testified that the spark arrester, or netting, in the front of engine No. 37 was in good condition, and that large sparks conld not be emitted from the engine through this netting. The engineer testified that his engine 37 on the night of the fire passed through Stampley and by the store about thirty minutes before it burned, and that his engine was not throwing sparks and burning cinders from the smokestack, but that the engine was in good condition and was not throwing sparks then nor at any time previous to that date; that he was working a “light throttler’ through Stampley thirty minutes before the store was burned, and that sparks of any appreciable size cannot be thrown from an engine when working a light throttle as he was working on that occasion. The conductor corroborated in part the testimony of the engineer in so far as he could do so of his own knowledge^

"With this sharp conflict in the testimony submitted to the jury by both sides, the jury returned a verdict in favor of the railroad company; and it is urged here by the appellant that the judgment of the lower court should be reversed for several reasons, but we will discuss only two of the grounds assigned:

First. The appellant contends that the verdict was contrary to the great weight of evidence in the case, and that the facts and circumstances of the fire shown by the plaintiff’s testimony were so overwhelming and conclusive in favor of the plaintiff that the verdict of the jury is contrary to the evidence in the case. Counsel for appellant cite as authority for this proposition the case of Richland Planting Co. v. Y. & M. V. R. R. Co., 113 Miss. 154, 74 So. 126. We cannot agree with the contention of counsel for appellant that the case cited is in point here, for the reason that the facts in the two cases are very much different. The testimony in the Eichland Planting Case was wholly one-sided for the plaintiff, and was practically undisputed, and nearly amounted to conclusiveness, while in the case before us now the testimony seems to be fairly well divided and in sharp conflict, and the jury could have very well decided the issue of fact either way without being subjected to criticism; therefore we would not disturb the finding of fact of the jury in this case, if there was no other reversible error in it.

Second. The appellant contends that the judgment of the lower court should be reversed on account of the grant of two erroneous instructions to appellee, which are No. 1 and No. 3, and read as follows:

“No. 1. The court instructs the jury that if the evidence leaves them in doubt and uncertain as to how the fire started, they should find for the defendant. ’ ’

“No. 3. The court instructs the jury for the defendant that if the evidence leaves them in doubt and uncertain as to whether the fire was caused by the locomotive of defendant or by some other accident or by some other setting fire to the store, they must find for defendant. ’ ’

That these instructions are obviously erroneous there can be no doubt. There being a sharp conflict in the testimony, and it appearing that the testimony was such as easily to warrant the jury in finding that the store building was or was not set on fire by the locomotive, the instructions were damaging to appellant. These two erroneous instructions, telling the jury “that if the evidence leaves them in doubt and uncertain as to how the fire started they would find for the defendant,” must have been prejudicial and harmful to the rights of the plaintiff below. This form of instruction has been repeatedly condemned as erroneous by this court in recent cases, and granting it in this case was manifest and reversible error. Gentry v. Gulf & Ship Island R. R. Co., 109 Miss. 66, 67 So. 849; Stevenson v. Yazoo & M. V. R. R. Co., 112 Miss. 899, 74 So. 132. We observe from the record that no other instructions were given by the court which in any way cured the error in instructions Nos. 1 and 3 given to and used by the railroad company in the trial below. For the error mentioned, the judgment of the lower court is reversed, and the cause remanded.

Be.versed and remanded.