Mitchum v. S.A.L. Ry.

I concur in the disposition of the question of evidence as to the other fires set by the engines of the defendant, upon the ground that the objection was not accompanied by a statement of the grounds thereof. Upon the merits of the question raised I prefer that the Court should reaffirm the decision of this Court in the case of McGill Bros. v. RailwayCo., 87 S.C. 178, 69 S.E. 156.

Upon the main point of the appeal, alleged error in refusing motions for nonsuit and directed verdict, I dissent from the conclusions reached by the majority of the Court, and will endeavor to make clear the reasons therefor.

The liability of a railroad company for the results of communicated fires is, under section 3226, vol. 1, Code of Laws 1912, absolute. No question of negligence or due care can arise. If it be established that the fire originated upon the right of way, in consequence of the acts of any authorized agent or employee of the company, or was communicated by its engines, the company is liable in damages for the subsequent injury. The statute is one of exceptional liability. It is only just, therefore, that one who claims the benefit of such a statute must bring himself within its provisions.

There is no contention on the part of the plaintiff that his claim comes under the provisions of the first part of the section, that the fire originated upon the right of way, etc. His claim is under the second part, that the fire was communicated to his house by the locomotive engine of the defendant.

The burden of establishing this fact is upon him. He must sustain it by evidence, direct or circumstantial, not by conjecture. This Court, however, is not the tribunal for the decision of that issue of fact. It is a Court for the correction of errors of law. Its jurisdiction and consideration of matters of fact arise only when the evidence is susceptible of only one reasonable inference, or from a negative standpoint, when from the evidence a reasonable inference of the existence of the essential fact would not be drawn by any reasonable mind.

I shall consider the facts, as I should, with every reasonable intendment, most strongly in the plaintiff's favor.

The plaintiff's dwelling house fronted the railroad track on the west side. The distance from the center of the track to the point on the kitchen roof where the fire was located was at least 90 feet. The kitchen, in the rear of the house and furthest from the track, was a gable-end building, with a sharp roof, covered with new shingles. The fire was discovered about 11 o'clock a.m. The plaintiff was in the sitting room and was alarmed by the roaring of the flames. He found the kitchen rof ablaze from the outside. Two passenger trains had passed that morning, one about 10 and the other about 11 o'clock. In about five minutes after the north-bound train had passed at 11 o'clock he heard the roaring of the fire and supposed that it must have been this train that set fire, though he did not know for certain. There was no fire in the stove between 10 and 11 o'clock when he went into the kitchen to draw some tea. He did not build the fire and draw the tea because the wind was too high. There was at the time a very high wind blowing from the house toward the railroad, as the plaintiff himself admits. He admits also that he saw sparks from his burning house going across the field and setting fire on the other side. The church on the other side of the railroad from the house caught fire and was burnt, from sparks flying across the railroad from the burning house. When confronted by the anticipated testimony of witnesses for the defense, among whom was the plaintiff's niece by marriage, who was spending a few days at his house at the time of the fire, to the effect that he attributed the fire to the kitchen stove, he denied making such statements, but added: "If I did, I have forgotten it."

From the foregoing statement of facts, take entirely from the plaintiff's testimony, I cannot see how any other inference can be drawn than that he has entirely failed to connect the fire with the defendant's engine. As circumstantial evidence, he shows that the kitchen was within 90 feet of the track; that a train passed about five minutes before the alarm; that there was no fire in the stove; that the fire originated on the kitchen roof. It seems incredible that sparks could pass over his house, covered with old shingles, and ignite the kitchen roof covered with new shingles; that in five minutes a spark could produce such a combustion as to alarm him in another part of the house by the roaring of the flames and gain such headway as to be irrepressible. Many of the originary indicia in suits for damages on account of communicated fires are conspicuously absent — the absence of spark arresters; drunken or incompetent engineers; use of excessive steam; unusually heavy trains; going up grade; violation of statute; excessive speed; want of repair or defect; stopping of engine; stirring up fire at dangerous places; dropping of coal; emission of sparks, etc.

The fact that upon other occasions plaintiff had seen fire set upon the right of way by sparks from engine is but speaking to an occurrence of known happening; but, assuming that it established the fact that every engine on defendant's line every day and at every point emitted sparks, the plaintiff is met with the insuperable physical impossibility of a spark making headway in the teeth of a gale. The undisputed effect of the wind upon the sparks rising from the plaintiff's burning house is strongly persuasive to my mind that its effect upon the sparks rising from defendant's engine, if there were any, of which there is no evidence, was the same, driving them away from the house instead of towards it.

I therefore think that the motion for nonsuit or directed verdict should have been granted, and dissent from the judgment rendered herein.