Troxler v. Richmond & Danville Railroad

Rea.de, J.

I. His Honor charged the jury that “if the ■defendant had placed near its track a pile of old, dry, combustible sills, and that fire from the defendant’s engine first ignited the sills and thence the plaintiff’s fence wms burned, then the defendant was guilty of negligence.”

The correctness of this charge is too plain for controversy.

II. Admitting that to be so, still the defendant insists that .plaintiff was guilty of contributory negligence, and therefore was not entitled to recover.

It is not stated in what the alleged contributory negligence 'consisted, but there was evidence that the pile of old sills caught fire and communicated fire to a fence, near by, which was connected with it, a good distance off; and that the inter- ■ mediate fence was old and was grown up with grass, and was ■highly combustible. And we suppose that the alleged contributory negligence consisted in the plaintiff’s joining his .fence to that. But the defendant has no right to complain ; for his Honor charged that if the fire caught that fence from the engine, then the plaintiff could not recover. So that the amount of the finding of the jury is that the burning resulted • solely from the old sills.

III. After the testimony and the arguments of counsel and 'the charge of the Judge were all closed, and the jury had .risen to retire, the defendant’s counsel handed up to his Honor two issues in writing, and requested him to submit them to the 'jury. His Honor read the issues aloud and handed them to 'the jury; and the jury did not return the paper and did not specifically respond to tbe issues. And for this the defendant insisted that the verdict should be set aside. His Honor knew better than we, what consideration to give to such irregular practice. The defendant certainly had no right to complain that he did not give enough. If the issues were embraced in what had been already submitted to the jury, he had no right to have them repeated. And if they were new issues, he had no right to have them made then. It appears, however, that said issues were, as to whether the pile of sills were there, and whether there was contributory negligence. Both of which had been fairly submitted to the jury, and although they did not return the paper, yet their verdict covered the issues.

There is no error.

Pee CuRiam. Judgment affirmed.