Folsom v. Illinois Central Railroad , 116 Miss. 561 ( 1917 )

Stevens, J.,

delivered the opinion of the court.

Appellants, as complainants in the court below, filed in this case their bill in equity to recover the value of a dwelling house and its contents alleged to have been burned by fire set out by tbe locomotives of tbe defendant company. For reasons immaterial to the present inquiry the suit was instituted in the chancery court. The bill was answered, testimony taken for both parties, and a final decree was rendered by the chancellor dismissing the bill. The decree rendered by the chancellor has two main paragraphs or divisions. In the first portion of the decree the chancellor finds from the testimony offered on behalf of the complainants that:

“It had been sufficiently established, prima fañe, by substantial evidence, that the fire which destroyed the house and its contents, the property of the complainants, was set out by sparks which were emitted from one of the defendant’s locomotive engines passing said point about the hour of seven-thirty p. m., and for that reason, at the close of the complainant’s testimony when a motion was made by the defendant to exclude the testimony, the said motion was by the court overruled.”

In the second division of the decree the chancellor finds that the “prima-facie case made by complainant’s witnesses was met and overcome.”

Without commenting in detail upon the force or weight of the testimony, we are led to the conclusion that the final decree appealed from is against the evidence in the case and should be reversed. As we construe the facts, the chancellor was manifestly Wrong. Since the enactment of Chapter 151, Laws of 1912, the defendant company is “responsible in damages to every person and corporation whose property may be injured or destroyed by fire communicated, directly or indirectly, by locomotive engines in use upon the railroad,” and has “an insurable interest in the property upon the route of the railroad.” This statute imposes liability regardless of negligence; and the sole inquiry, then, is .one of fact; that is, whether the house here sued for was in fact destroyed by fire “communicated directly or- indirectly” by the defendant’s locomotives. It is doubtful whether the chancellor applied the statute in this case. In one portion of the decree the chancellor-finds the facts to he that the fire was set ont by sparks emitted from the defendant’s locomotive. He then finds that the prima-facie case made for the complainants has been overcome by the testimony for the defendant. The testimony offered hy the defendant was directly chiefly to the proposition of negligence. The engineers in charge of the locomotives of the defendant were pnt upon the stand, and testified that their engines were handled with care, that the locomotives. were in good condition, and were properly equipped with spark arresters. This was competent testimony, but, as we see it, did not sufficiently overcome or meet the case as made for the complainants. The case is strikingly similar to that of Richland Planting Co. v. Y. & M. V. R. R., 113 Miss. 154, 74 So. 126. As stated by the court in the case referred to:

“There was no source .or cause from which the fire could have come except the locomotive. There were no fires in or about the building, and there had been none from which the building could have been set on fire for several hours before that time. The blaze could not have started from a smoldering fire in. the ceiling, ■sometimes caused by defective flues, because the proof shows that the fire here started on the outside of the roof and must have come from an outside source.”

That is the situation here. The house was an old one, with a board roof. It was burned about ’ seven-thirty p. m. on an April evening; the house at that -time was unoccupied, and there had been no fire in the house that afternoon. The -fire originated about halfway up on the side of the roof next to the railroad right of way. Witnessés for the complainants first observed a very small blaze on the roof, and there was a sufficient breeze to fan this rapidly into a consuming fire. The proof indicates no agency except sparks from defendant’s locomotives. The house was situated upon the right of way near where loaded trains stopped to take on coal and water.

The proper order, we think, is one remanding the ease for a new trial.

Reversed and remanded.