In Kurn, the Court found it important to note that there was no evidence indicating that the train did not start the fire, but rather that all of the evidence presented indicated that it was probable that the train started the fire.Summary of this case from Patterson v. T. L. Wallace Constr., Inc.
November 25, 1940.
Defendants who after having made a motion to exclude evidence on behalf of plaintiffs, and renewed motion at conclusion thereof, proceeded to introduce evidence thereby "waived" objection to action of court in refusing to exclude plaintiffs' evidence.
In action against railroad under statute for damages caused by fire set up by sparks from locomotive, plaintiff need not prove negligence on part of railroad which is vested with an insurable interest in abutting property (Code 1930, sec. 6153).
3. APPEAL AND ERROR.
On appeal from judgment for plaintiffs, evidence and all fair inferences which jury might reasonably deduce therefrom must be resolved in favor of plaintiffs.
In action against railroad for loss of property by fire allegedly set up by sparks from a locomotive, whether sparks from the engine of one of locomotives set fire to grass in ditch, and whether wind carried the flames to the garage and house, were questions for jury under circumstantial evidence (Code 1930, sec. 6153).
Where a case turns upon circumstantial evidence, it should rarely be taken from the jury.
When circumstantial evidence justifies jury in finding that an inference that fire was set by railroad locomotive is stronger and more probable than that it was set out from another cause, question of fire's origin is for jury (Code 1930, sec. 6153).
Whether it was possible for sparks from an oil burning locomotive to be carried a distance of from 51 to 64 feet and to set fire to inflammable material was for jury in action against railroad for loss of property resulting from fire set by sparks (Code 1930, sec. 6153).
In action against railroad for loss of property destroyed by fire, between 1 and 2 o'clock A.M., set by sparks from locomotive, testimony regarding sparks being emitted from locomotives of passenger trains which passed the house destroyed between 11:45 P.M. and 1 A.M., was properly admitted (Code 1930, sec. 6153).
APPEAL from the circuit court of Lowndes county; HON. JNO. C. STENNIS, Judge.
Owen Garnett, of Columbus, D.W. Houston, Sr. Jr., of Aberdeen, and E.G. Nahler and A.P. Stuart, both of St. Louis, Mo., all for appellants.
We are not unmindful of the cases decided by this and other courts where fires occurred and destroyed property along the rights of way of railroads, holding that where the evidence, even though circumstantial, was such as to justify a finding that the inference that the fire was set out by a locomotive was stronger and more probable than that it was set out from another cause, makes an issue for the jury. However, every case must stand or fall on its own peculiar facts, and while the principles of law announced in all of these cases may be good law, and we do not dispute their accuracy or good purpose, however, we do say, with all confidence, that the facts presented by this record by the positive testimony of eye witnesses as well as by experts negative, rather than sustain, the facts upon which the principles laid down in those cases were and are predicated.
The evidence of the plaintiff is obscure in cogency and in probative detail and has not the support of that substantial character of definite evidence which is necessary to maintain the affirmative of the issue here involved which is required to be proved with a reasonable degree of certainty, and for that reason we urge upon you to correct the manifest error committed by the lower court in denying us a directed verdict and do here that which should have been done there, reverse the judgment and enter a judgment here for appellants.
The court erred in permitting plaintiffs and each of the other witnesses introduced by them to testify that other passenger engines than those identified as the engines passing appellees' premises on the night in question and at other times emitted sparks.
Not only the plaintiffs, but their witnesses, who did not attempt to identify any of the engines, were permitted to testify indiscriminately that they saw other passenger engines at other times and on other nights different from the night of plaintiff's fire — both before and after — throwing sparks, and although they stated that these sparks fell in grass and did not set out any fires, this testimony to the ordinary lay mind and that of the jury was highly prejudicial to defendants and should have been excluded from their consideration as it was clearly incompetent — evidence of such character in the state of the record we have here having been condemned in one of the leading cases by this court, Tribette v. I.C.R.R. Co. 71 Miss. 212, 13 So. 899.
M.C.R. Co. v. Miller, 40 Miss. 45, So. R.R. Co. v. Kendrick, 40 Miss. 374.
We are not unmindful of the subsequent cases decided by this court wherein under certain circumstances this court has held that testimony of other engines throwing sparks within a reasonable time — both before and after a fire — is held admissible as tending to prove the possibility, and the consequent probability, that some locomotive caused the fire and as further tending to show a negligent habit of the officers and agents of the railroad company, etc., such as the case of A. V. Ry. Co. v. Aetna Ins. Co. et al., 82 Miss. 770, 35 So. 304, which seems to be one of the leading cases on this point, and which cited approvingly the decision of United States Supreme Court in case of Grand Trunk Ry. Co. v. Richardson, 91 U.S. 470, 23 L.Ed. 362, but insofar as we have been able to find, the Tribette case, supra, has never been overruled and is still the law in this state. In fact, it was approvingly referred to and re-affirmed in this particular case of A. V. Ry. Co. v. Aetna Ins. Co. et al., supra.
The issue in the instant case was not one of negligence on the part of the defendants. That did not enter the case, — the question, and the sole and only question, was as to whether or not engines 1013 and 1014 threw such sparks, and not other engines on different nights, as would communicate the fire to plaintiffs' house. What these other engines did had nothing to do with what engines 1013 and 1014 did, and was far too remote to be allowed to remain with a jury of ordinary men.
To allow a verdict to stand on the testimony in this record would make a railroad an absolute insurer against fires of all property along and abutting its right-of-way, without regard to any showing that such fire was communicated by such railroads to such property, which is not contemplated by Section 6153 of Code of 1930, giving railroad companies an insurable interest in property abutting the right-of-way and making them liable for fires communicated to it; and we, therefore, respectfully request such reversal and a judgment here.
John H. Holloman, of Columbus, for appellees.
Appellants, by putting on evidence in the lower court after denial of their motion for a directed verdict at the conclusion of plaintiffs' testimony, cannot avail themselves here on appeal of any error, if any there be, in the denial of said motion, their action having waived same.
3 Am. Jur. 52, sec. 277; 4 C.J. 721, sec. 2636.
Everything must be considered as proved which the evidence establishes directly or by reasonable inference against the party who asks a peremptory instruction.
The findings of fact by a jury will not be set aside unless manifestly or clearly wrong, which is to say, unless clearly or manifestly against all reasonable probability.
Fact finding, which includes all material inferences and deductions which may be reasonably and logically drawn from the relevant direct facts, is a province which belongs to the jury, to be exercised by them according to the every-day experiences and knowledge and observations of the twelve men constituting the jury — not of and by any one man, be he judge or jury.
M. O.R.R. Co. v. Cox, 153 Miss. 579, 121 So. 292.
The lower court did not err in refusing to direct a verdict for the defendants, either at the conclusion of plaintiffs' evidence, or at the conclusion of all the evidence, or in refusing defendants' requested written peremptory instruction. The evidence is sufficient to support the verdict of the jury.
Under Section 1153, Code 1930, a railroad is liable regardless of negligence. The only question now is whether the fire that caused the damage was communicated, directly or indirectly, by a railroad engine, and such origin of the fire may be sufficiently proved by circumstantial evidence, and in cases of this character, it is a question for the jury whether or not, as between two or more probable causes of the fire, the one that it was set out by a locomotive is the most probable.
G.M. N.R. Co. v. Sumrall, 142 Miss. 56, 107 So. 281; Folsom v. I.C.R. Co., 116 Miss. 561, 77 So. 604; Liverpool, London Globe Ins. Co. v. Kosciusko S.E.R. Co., 121 Miss. 258, 83 So. 305; Wardlaw v. So. Ry. Co., 122 Miss. 180, 84 So. 177; L.N.O. T.R.R. Co. v. N.J. C.R.R. Co., 67 Miss. 399; I.C.R. Co. v. Scheible, 162 Ky. 469; Deason v. Ala. Great Southern R. Co., 186 Ala. 100, 65 So. 172; Kansas City, Fort Smith Memphis R. Co. v. Blaker (Kans.), 64 L.R.A. 81; New York, Chicago St. Louis R. Co. v. Roper (Ind.), 96 N.E. 468, 36 L.R.A. (N.S.) 952; Union Pacific R. Co. v. De Busk (Colo.), 3 L.R.A. 350; L. N.R.R. Co. v. Beeler, 103 S.W. 300, 11 L.R.A. (N.S.) 930; McCullen v. Chicago Northwestern Ry. Co., 101 Fed. 66; I.C.R. Co. v. Thomas, 109 Miss. 536, 68 So. 773.
Appellants assert in their brief that this will be a case of first impression in Mississippi in fire cases where oil-burning engines are concerned, by such assertion and device patently seeking an escape from the numerous Mississippi fire cases that are so chilling to their position herein. We fail to see where there is any distinction or difference in face of the overwhelming evidence in this record that oil-burning engines do throw sparks or flaming soot, that soot is emitted from the smokestacks in large quantities and in large sizes and carry great distances depending upon the wind, that soot therefrom has been seen to hit the ground off the right-of-way, still lit or sparkling, that when some of it fell on the hand of Witness Bush, nearly burnt out, it burned him, though only barely, as he said.
Viera v. Atchison, T. S.F.R. Co., 10 Cal.App. 267, 101 P. 690; 10 Negligence Compensation Cases Ann. 808, note V; Miss. P. L. Co. v. Goosby (Miss.), 192 So. 453; A. V. Ry. Co. v. Barrett, 78 Miss. 432, 28 So. 820.
The case of McCain v. Wade, 181 Miss. 668, 180 So. 748, so heavily relied on by appellants and the only fire case as we recall that they cite and quote from to sustain their position, is clearly not in point in the case at bar for several reasons, two of which we deem sufficient to mention, namely: (a) The suit was brought under Section 3422, Code of 1930, requiring proof or negligence, which is quite different from Section 6153, Code of 1930, under which the case at bar was brought, and the purpose, legislative intendment, proof required, and situation sought to be met are entirely different; and (b) that various other persons had various other fires going in the same immediate vicinity. In the case at bar, there were no other fires anywhere to be seen when the plaintiffs discovered their home on fire, but we do know that at least two passenger engines of defendants passed by shortly before the fire and that they were seething with fire, etc.
Mardis v. Y. M.V.R. Co., 115 Miss. 734, 76 So. 640.
It cannot be held as a matter of law that an oil burner cannot cause a fire along right of way. It is a jury question.
Slaton v. Chicago, M. St. P. Ry. Co. (Wash.), 166 P. 344; Roundtree v. Mt. Hood R. Co. (Ore.), 168 P. 61.
The court did not err in permitting plaintiffs and their witnesses to testify that on other nights before and after the fire they had seen passenger engines of appellants passing appellees' premises throwing sparks.
A. V. Ry. Co. v. Aetna Ins. Co. et al., 82 Miss. 770, 35 So. 304; Grand Trunk Ry. Co. v. Richardson, 91 U.S. 470, 23 L.Ed. 362.
We submit that under the facts of this case we fall squarely within the A. V. Ry. Co. v. Aetna Insurance Company case, supra, rather than the case of Tribette v. I.C.R.R. Co., 71 Miss. 212, 13 So. 899. As said by the court in the A. V. Ry. Co. v. Aetna Insurance Co. case, there was no identification in this case of any engine as being the one which set out the fire. That is the situation in the case at bar, no identification of any particular engine as being the one which set out the fire. The Tribette case is cited with approval solely on the point that it is of no vital importance to establish what engine did the work, the essential inquiring being whether some engine caused the fire.
Furthermore, it is to be noted that in the case at bar the oil burners that passed that night were in regular use on, and were the regular passenger engines in regular use on this run both before and after the date of the fire; also, there was evidence to the effect that these engines ran in opposite directions, going South one day and coming back North the next, and vice versa; there was evidence showing or tending to show that all the oil-burning engines were in good condition as oil burners go.
Furthermore, the evidence was admissible to anticipate or to rebut the theory and plea of the defense that it is impossible for oil-burning engines to throw sparks.
The appellees, J.W. Fondren and his wife, sued the trustees of the railway company for damages because of the loss of their house, garage, and personal property therein, by a fire alleged to have been set by sparks from a locomotive engine of the railway company in its operation near the dwelling of the appellees. The declaration was in two counts: (1) for the value of the property destroyed by fire, under section 6153, Code of 1930; and (2) for the statutory penalty and under section 3422, Code of 1930. By proper pleadings the whole case of the appellees was put in issue by the trustees of the railway company; and on being submitted to the jury a verdict for $1,250 was rendered in favor of the appellees, and judgment entered thereon accordingly; from which judgment this appeal was prosecuted.
The second count of the declaration, as to the statutory penalty, was disposed of by the lower court by a peremptory instruction for the appellant, and is of no further consequence in connection with this appeal.
The essential facts are as follows: Fondren and his wife owned a triangular piece of land abutting the right of way of the railway company, of about 1 1/2 acres, bounded on the west by the railroad tracks and right of way, on the east by the highway, and on the south by a ditch, with the point of the triangle pointing north. The house faced a black-topped highway, No. 12, to the east, while on the west lay the right-of-way, fenced off at a distance of 50 feet from the center of the track; the south boundary consisted of a ditch about 5 feet wide and 5 deep, running east and west, crossing the railroad right-of-way, and filled with a dense growth of sedge grass. The weather had been very dry, no rain having fallen for a long time. The Fondren home was a frame house with a composition roof, on the south side of which were two bedrooms with a bath between, and the garage was a little south and west of the southwest room, and about 4 feet north of the ditch. The garage was about 20 feet south of the dwelling, and not more than 130 feet from the railroad track.
On the morning of October 17, 1938, between 1 and 2 o'clock, Mr. and Mrs. Fondren were awakened by smoke, and found the southwest room to be on fire. The evidence of appellees establishes, as did that of another witness, that when they rushed from the house they discovered that the sedge grass in the ditch had been burned from the right of way east to the garage, and that the fire, as to the house, appeared to have originated in the southwest corner room, the garage being about to fall in already. A strong west wind was blowing from the direction of the railroad right of way toward the house and garage, a little north of west. It was shown by the evidence that the grass in the yard and curtilage had not burned on the east side toward the highway.
Over the objection of the appellant witnesses were permitted to testify that the schedules of the two passenger trains were, that the southbound train passed this point about 11:30 P.M., and the northbound train about 1 A. M. A night or two before, and a night or two after this fire, and within the week, the engines pulling the passenger trains emitted flaming sparks which flew quite a distance. Some of them fell aflame on Fondren's lot, and also on the lot of his adjoining neighbor, Mr. Hill. The ground between the garage and the railroad right-of-way fence was plowed at these points.
No witness in this case testified to having observed any fire near these premises or in the vicinity at the time in question. On the morning preceding the night of the fire Mr. and Mrs. Fondren had breakfasted at home, and had then left on a visit at 7 o'clock in the morning, returning about dark that evening. No fire had been left burning in the house, and none was lighted on their return, and they retired early.
The evidence for the railroad company showed, as stated, that these passenger trains passed this point, going north and south, at about 12:45 and 11:45 at night, respectively. All the engines used in this passenger service burned oil, being of practically the same type as those in use on the night of this fire, which the railroad company claimed would not emit sparks which would ignite matter. It was testified that there was no heavy draft on the engines of these passenger trains in passing this point, since the grade is practically level; that neither on that night nor on others did the engines emit sparks, as it was customary for the company to "sand out" the flues of the engines to rid them of the soot which collected therein, at a place to the south of Columbus; that at a point about 25 miles north of the place here involved the engines would again be "sanded" to remove the soot, caused by combustion of the oil, from the flues of the smoke stack. In performing the sanding operation, which was done by the foreman, the engineer would increase the draft of the engine to blow out the soot, in which process sparks would be emitted; as they did, also, at stations, when the draft would be heavy in starting the train; which sparks, it was contended, would not burn a person's hand if they should fall on it, nor would they be carried any distance. However, one witness for the railroad testified that the heat of a spark falling on his hand would barely be felt; and another, that he had seen the sparks blow back from the engine toward the coaches about 120 feet.
All of the employees operating the two passenger trains here in question were examined, with the exception of one engineer who had died, and one conductor who was ill, and could not be found; and other witnesses, also. One of these was a neighbor of the Fondren's living about 150 yards distant, who said he had been aroused by a yell from a human being, and going out on his porch saw that the garage had just caught fire, and that the house was practically burned down. He was somewhat confused as to the distance from where he lived to the home of the Fondrens; said he did not go to the fire to see about his neighbor, but returned to his bed.
The railroad company offered one of its section foremen as a witness, whose testimony was to the effect that shortly after the fire he asked Fondren how it originated, to which the latter replied that he did not know; but that in the southwest room there was rubbish, and a rat might have ignited it with a match — which statement was denied by Fondren.
At the conclusion of the appellee's evidence a motion was made by appellant to exclude it, which motion was overruled by the court. At the conclusion of the evidence for both sides the appellant again made a motion to exclude such evidence, and for the court to direct the jury to find for it; this motion, also, was overruled.
Although the case is argued here on several points, the real questions presented are as follows: (1) Did the court err in refusing a peremptory instruction for the appellant; (2) Did the court err in permitting the testimony objected to, in regard to sparks being emitted from the locomotives of these passenger trains which passed the house between 11:45 P.M. and 1 A.M. on other occasions? We thus state the points involved because after having made a motion to exclude the evidence on behalf of appellees, and at the conclusion thereof, the appellants proceeded to introduce evidence, thereby waiving the objection to the action of the court in refusing to exclude appellees' evidence. Maclin v. Bloom, 54 Miss. 365; Nebhan v. Mansour, 162 Miss. 418, 139 So. 166, 878.
This Court has held that the plaintiff in an action under section 6153, Code of 1930, need not prove negligence on the part of the railroad company, because such company is vested with an insurable interest in the abutting property.
The court below overruled a motion for a new trial, in which the verdict was challenged at every possible point.
The appellees undertook to establish their case by circumstantial evidence; first, there was no other fire shown to have been in that vicinity which could have caused the destruction of Fondren's property on that night. No witness saw sparks emitted from the locomotives of the appellant railroad company at that time — no witness swears to having seen any sparks; and there is no evidence that any other fires had been set out by a locomotive of the company — there is no direct evidence that the fire was started by sparks from a locomotive. The case of appellees turned upon the fact that the fire originated at about 1 foot from the post of the right of way fence of the railroad, adjoining the ditch. The railroad company claimed that by actual measurement the point where the fire ended was about 14 feet from that right of way post; the evidence is undisputed that the wind was blowing "strong" from the west; in other words, from the railroad right of way along the ditch to the garage and the house at the southwest corner. There is no conflict as to the direction in which the wind was blowing. There is conflict as to whether the fire originated first in the garage or in the house, which conflict was submitted to the jury, and resolved in favor of the appellees. So that not only the evidence we have quoted, but all the fair inferences which a jury might reasonably deduce therefrom is to be resolved in favor of the appellees. See Dean v. Brannon, 139 Miss. 312, 104 So. 173.
We think that the jury were warranted in finding from these facts that the reasonable probability was that sparks from the engine of one of the locomotives set fire to the grass in the ditch, and that the wind carried the flames to the garage and house.
The argument on behalf of the appellants eliminates the wind, claiming that if sparks were emitted from the engine, the flame would have set fire to the grass between to garage and the right-of-way fence; that the witnesses did not see any fire originate on the occasions about which they testified. It cannot be assumed by us that grass was growing on the space between the fence and the garage, because the witnesses testified, without contradiction, that this was plowed ground. It was stated that this was a case of first impression in regard to oil-burning engines. The testimony shows that the soot which accumulated in the flue of the engine had been blown out by the operators of the engine — that it was similar to the soot in a lamp chimney, or to that which accumulates in any chimney in a house. The fact that the witness, Hill, found the sedge grass in the ditch, shown by the testimony to be a dense growth, and dry, to have burned from the railroad right-of-way fence, or near it, to the house, in conjunction with the direction from which the wind was shown to be blowing at the time, in our opinion warranted the jury, under the rule adopted in such cases, in finding for the appellee that the fire was set out by sparks from the locomotive on the night of the fire — probably by the locomotive of the northbound train, which passed, as testified, about 1 o'clock A.M.
In this case the jury were left to determine the question at issue from the facts as proved. They could not infer that the fire had been caused by a match thrown from a passing automobile on the highway, to the east of the house, because the grass was not burned from that direction. We think it is fair to say that there is no evidence which excludes the reasonable probability of a fire having been set by sparks from a passing locomotive; but, on the contrary, that the evidence more strongly tends to show such a probability.
This conflict in the evidence presented an issue of fact to be decided by the jury; and where a case turns upon circumstantial evidence it should rarely be taken from the jury. We do not believe that we are warranted in holding in this case, under the issue of facts above stated, that the determination of the issue should have been taken from the jury by the court. Nor do we believe that the overwhelming weight of the evidence is against the facts as testified to on behalf of the appellees, and the fair inference deduced therefrom. The rule in this state is that when the circumstantial evidence justified the jury in finding that the inference that the fire was set by a railroad locomotive is stronger and more probable than that it was set out from another cause, the question of the fire's origin was for the jury. We think the case is controlled in principal by Gulf, M. N.R. Co. v. Sumrall, 142 Miss. 56, 107 So. 281, and Illinois Cent. R. Co. v. Thomas, 109 Miss. 536, 68 So. 773; cf. Folsom v. Illinois Cent. R. Co., 116 Miss. 561, 77 So. 604. This is essentially true where it was not incumbent upon the appellees to show negligence on the part of the railroad company; and we are of opinion that such cases cited by the appellants are not applicable to the case at bar.
As to whether or not live sparks emitted by an oil-burning locomotive, and plainly to be seen at night, could set fire to inflammable matter, we think it better for us to follow the conclusions arrived at by other courts on that point. See Viera v. Atchison T. S.F.R. Co., 10 Cal.App. 267, 101 P. 690; Slaton v. Chicago, M. St. P.R. Co., 97 Wn. 441, 166 P. 644; Roundtree v. Mt. Hood R. Co., 86 Or. 147, 168 P. 61, and other authorities cited in these cases. We cannot hold, as a matter of law, that it is impossible for sparks from an oil-burning locomotive to be carried a distance of from 51 to 64 feet, and to set fire to inflammable material. If a spark is perceptible to the hand of a laborer, it is for the jury to say whether or not it is capable of igniting dry sedgegrass; and it was testified by a railroad employee that these sparks could fly a distance of 120 feet, depending on the draft of the engine, and the direction and velocity of the wind, — all of which was before the jury in this case.
Under the holding of this Court in the case of Alabama V.R. Co. v. Aetna Ins. Co., 82 Miss. 770, 35 So. 304, the evidence of witnesses as to sparks emitted from locomotives passing a given locality at certain hours, within a reasonable time before and after the occasion under investigation, was held to be competent; and in so holding we did not in any manner overrule or pare down the rule announced in Tribette v. Illinois Cent. R. Co., 71 Miss. 212, 13 So. 899.
In the case before us the railroad company carefully demonstrated that the engines operating on the night in question were oil-burners of the same type as other engines operating passenger trains past this locality on the same schedule, and which do emit sparks, according to the testimony of a witness for the railroad company, who said that sparks had been emitted by such an engine on this schedule, both before, and two nights after, the fire here in question. In other words, the evidence shows that they were the same kind of engines, which, as claimed by the railroad company, being oil burners, would not emit sparks at this particular locality. In the Tribette case the railroad company showed by its witnesses what other and different kinds of engines did on different occasions with reference to emitting sparks. The distinction between the Tribette case and the Aetna case is quite marked.
In conclusion we will say that the inference, created by the fact that the wind was blowing from the railroad tracks toward the dwelling on this occasion, the garage was first on fire, the ditch bank covered with bushes and dry sedge, is that these oil-burning engines did emit sparks in passing this point that night within 30 or 45 minutes before the ditch was burned off and the garage almost consumed; although this is stoutly contradicted by the railroad company.