Gracy v. Atlantic Coast Line Railroad

Hocker, J. (after statmg the facts) : Objection is made by tbe defendant to tbe consideration by this court of assignments numbered 1, 3, á, 5 and 6, because while the bulk of the testimony is given in the bill of exceptions in narrative form yet these assignments are based on certain questions propounded to witnesses which with the answers are scattered through the record. It seems to us that the objection made is untenable and that the bill of exceptions in these particulars complies with the proviso in Special Rule 1 to be observed in the- preparation of Bills of Exception and Transcripts of Record, adopted in 1905. ( The first assignment is based on the ruling of the court-striking- out the answer of the plaintiff to the following question: “Do you know rvhat kind of fuel they were using in that engine that day? Ans. The engineer told me it was burning coal.” Granting- that the ruling-‘was erroneous, yet no harm was sustained by the plaintiff because in his testimony the engineer, Daniels, who was operating the engine on the day of the fire, states in his testimony, “My engine was burning coal that day — was burning good coal, and was steaming well.” The third assignment is based on the refusal of the court to permit the plaintiff on cross-examination to ask the engineer, Daniels, the following- question: “Mr. Daniels, if a hot clinker that would set fire to little pieces of wood and trash in which it had fallen was found near that commissary that morning before your train got out of sight, how could you account for it?” Plaintiff’s witnesses had — 357 — testified to finding a burning clinker on the sidetrack near the commissary on the morning before the fire where Witness Daniels’ train had been on the sidetrack getting oat a car at the mill of the plaintiff, and before his train had gotten out of sight. The witness had said that no clinkers had been put off his engine at that point. We see no- error in the ruling of the court. The question called for the opinion of the witness upon facts given in testimony by other witnesses, and such a question is not permissible finder the authority of Mann v. State, 23 Fla. 610, 3 South. Rep. 207, except when experts are being examined. The fourth assignment of error is based on the refusal of the court to permit' plaintiff Gracy on rebuttal to answer the following question : “You have heard the testimony of Mr. Jolly and others relative to this burned district— you' have also testified that you were on the ground the day of the fire, and the following day; I wish you would, take this blue print and explain to the jury exactly what that burned district embraced.” The objection to the question was that it solicited testimony which had already been given by the witness. For the plaintiff it is contended that the “blue print” referred to was only introduced in connection with the testimony of the witness, Jolly, who was the defendant’s witness, after the plaintiff had been examined. It appears from the record that Mr. Gracy upon cross-examination had examined a “blue print” and had given evidence to the jury bhsed on that examination. He refers in this evidence. to the “burned district,” to the location of the clinkers and the extent of the burned district. On redirect examination, immediately following this cross-examination, he stated: “The area between the" pencil lines indicated on this map is the burned district as I — 358 — remember it.” All this occurred before the question was propounded which forms the basis of this assignment. There is but one blue print or diagram, showing the location of the railroad track, mill, lumber piles, burned district and the other local features of the situation at Gracy’s mill, shown by the record. A circuit judge must exercise some discretion over the matter of the repetition of testimony. The record does not show any special reason why Mr. Gracy should have been permitted to enter generally a second time into a discussion of the extent of the burned district, when he had gone into the matter with great detail in his previous testimony. We do not think error is made to'appear under this assignment. The fifth assignment is based on the refusal of the judge to permit the plaintiff, as a witness in his own behalf, to answer the following question, to wit: “When was it that you ascertained in your opinion that the lumber caught fire from the clinkers?” The plaintiff in his previous testimony had stated that he first thought the fire was set out by a pile of burning crossties. The, lumber was burned on Sunday and he arrived at the mill about the time the fire had been extinguished. It,was then he formed this impression, which he had communicated to -others. But on Monday following he went from Gainesville to the mill, arriving there about noon. He then re-examined and found clinkers on and near the railroad track, which had started fires, and formed the opinion that the fire which did the injury was set out by the hot clinkers. It seems to us that the question had been sufficiently answered. The sixth assignment is based on the refusal of the court to permit plaintiff’s witness, J. O. Stokes, to answer — 359 — the following question propounded to him by the plaintiff’s attorney: “Look at this map and explain to the jury what portion of the territory between the railroad and the burned lumber was burned over during that fire.” The testimony of this witness immediately following the foregoing question plainly shows that the witness examined the map and testified at length as to what part of the territory between the railroad and the burned lumber was burnt over. It is not very easy to determine from this evidence what part of the territory was'burned, but the witness himself construes it to mean “that the space between the fence (a wire fence on the right of way) and the lumber pile was burned off,” but he could not say that it burned up to the track. Further along in his testimony this witness says: “The map is not practically correct as to indications of the burned grass — not according to my idea,” and indicated that the burned gx*ass ought to be a little further in “that direction.” The record does not clearly inform us what he meant by “that direction.” He then almost immediately says, speaking of the map: “It may be right, I don’t know, I am. not able to say whether it extended beyond the crossing or not. The map may be all right as to the burned distract.” No error appears under this assignment. The ninth assignment is based on the court giving the first instruction requested by the defendant, to wit: “A railroad company free from negligence is not liable for damages from fire ldixdled by sparks or clinkers from locomotives.” The contention of the plaintiff is that while the charge embraces a correct abstract proposition of law, so far as fires kindled by sparks are concerned, it is not correct when applied to clinkers from locomotives. No authority is referred to sustaining this contention, and — 360 — no reason occurs to us, from the nature of “clinkers,” which would make the general rule inapplicable to them. We think the court stated in this instruction a correct abstract proposition of law, for negligence is the basis of the plaintiff’s claim. If there was no negligence on the part of the railroad company, the plaintiff has no claim. The question of negligence was appropriately left to the jury by other instructions. The tenth assignment is based on the second instruction given at defendant’s request. It is as follows: “Railroad companies being authorized by law to employ the powerful and dangerous agency of steam, are required to exercise all ordinary and reasonable care and diligence in the construction, equipment, operation and management of their locomotives; ordinary and reasonable care and diligence, however, does not require the adoption of every new invention or contrivance, which science may or can suggest. They fulfill the measure of their duty in this respect by adopting such improved appliances and contrivances as are in general practical use by well regulated railroad companies, and which have been proved by experience to be adapted to the purpose. When they have discharged this duty, and the locomotive is propérly and prudently managed, they are not liable for accidental injuries caused by the escape of fire from their engines.” It is contended that this charge lacks a predicate in the evidence; that while the first and second counts charge that the fire was caused by sparks from the engine, no evidence was introduced by the. plaintiff to sustain this allegation; that plaintiff’s case was based on the 3rd and Ith counts alleging that the fire was caused by clinkers thrown from the engine. It is also contended that it excludes all evidence of the fire starting in the grass on the — 361 — defendant’s right of way, or whether the defendant had skilled employees operating its engines. It is true as a general rule that instructions should be confined to the issues made by the pleadings, and the evidence bearing on these issues. Savannah, F. & W. Ry. Co. v. Tiedeman, 39 Fla. 196, 22 South. Rep. 658, and cases cited. A plaintiff has the right to complain of instructions which vary or narrow these issues to his prejudice, and a defendant has a right to complain if they are so varied or broadened as to embrace matters not therein included to his prejudice. In the case at bar, however, the first two counts of the declaration averred that the fire was caused by “sparks, fire and live cinders,” which were negligently permitted to escape from the engine. The record does not disclose that the plaintiff ever notified the court or the defendant’s attorneys that he abandoned those two counts. The defendant introduced a good deal of testimony tending to rebut the averments of these two counts, without objection on the part of the plaintiff. Even if it were clear that the instruction was not strictly applicable to the plaintiff’s testimony, still under the circumstances, he has no right to complain of it. If he intended to abandon the first two counts, he should have informed the court before the jury was charged. As to the contention that the instruction excluded consideration of evidence tending to show negligence in the defendant, and especially that fire was communicated to the grass growing on defendant’s right of way, we do not think it tenable. The instruction dealt solely with the liability of the defendant as regards the construction, equipment, operation and management of its locomotives. This instruction is to be considered in connection with all the other charges and instructions. The first instruction — 362 — given at the request of the plaintiff was as follows: “If you find from the evidence that the agents and servants of the defendant threw from one of the engines of the defendant, on the morning of the fire, certain clinkers, and that said clinkers .fell upon the right of-way of the defendant, and fired the grass growing thereon, and that such fire spread from that place to the grass growing and standing between said right of way and the lumber of the plaintiff, and consumed the same,, and spreading thence, fired and consumed the property of the plaintiff, and that the plaintiff was at the time using ordinary care'and caution in the protection of his property, which was so consumed, then', you will find for the plaintiff in such sum as you shall find from the evidence has proved to have been the value thereof at the time of its destruction by fire.” The second instruction given on .request of the. plaintiff was even stronger in favor of the plaintiff than the foregoing one. Its purport is that the jury should find for the plaintiff if the grass growing on the right of way was fired by clinkers thrown from the engine, and such fire was communicated to the property of the plaintiff, without negligence on the part of the defendant. When these instructions are considered together there does not appear a possibility that the jury were misled by the instruction objected to, into ignoring the evidence relating to the communication of fire to the grass growing on the right of way or to the competency of the employees operating the engine. The eleventh, twelfth, fourteenth, fifteenth and eighteenth assignments are based on instructions given at the request of the defendant. The objections to these instructions are similar to those considered under the tenth assignment, and it would simply add to the bulk — 363 — of this opinion to reiterate what we have said. We discover no reversible error under either of them, construed as they must be, in connection with the other instructions. ’’The thirteenth assignment of error is based on the following instruction given at the request of the' defendant: “A railroad company is only required to use ordinary care and diligence, such as prudent men skilled in the business would ordinarily use in the particular case in question, to protect property on the line of their road from damage by reason of sparks escaping, or clinkers, from their locomotives. What constitutes negligence upon the part of the company with reference to a fire set out by sparks or clinkers from its engines, depends upon the circumstances of each particular case.” This instruction is objected to on grounds which we discussed under other assignments, and also because it does not set forth with sufficient definiteness the degree of care required of the defendant in operating its trains at the point where the plaintiff’s property was situated, near the railroad track. This instruction is identical in purport with the fourth instruction given at the request of the plaintiff in stating the duty of a railroad company to exercise ordinary care and caution in the operation of its trains so that the property of persons situated near or adjacent to the right of way shall not be damaged or destroyed. The plaintiff has no right to complain of this instruction. ' The sixteenth assignment of error is based on the eighth instruction requested by the plaintiff, vis.: “The jury are not permitted to infer or presume for want of positive proof to the contrary that the fire was communicated by the operation of the railroad.” It is contended that 'this instruction is argumentative, ignores the affirmative evi — 364 — deuce of tlie iffaintiff tending to show the fire was set out by clinkers from the engine of defendant, and comprehends any character of fire which might have been set out by the operation of the railroad, and was misleading. We fail to see the force of these objections. The instruction states what we understand to be law in such a case, vis.:' The burden of showing affirmatively in the first instance that the fire was caused by the defendant was on the plaintiff, and that this fact could not be presumed. It ignores no evidence, but simply furnishes a guide to the jury in considering the evidence. The seventeenth assignment of error is based on the ninth instruction given at the request of the defendant, “If the jury should be-satisfied from the evidence, that the fire did originate from sparks emitted, or clinkers, from defendant’s engine, they would not be justified in finding a verdict for the plaintiff, if it should also appear from a preponderance of the evidence that the defendant did exercise all ordinary and reasonable care and diligence in the equipment and operation of its engines, and was not otherwise negligent.” The objections to this instruction are, first, that it is postulated upon evidence of sparks emitted from the engine which is wanting; second, that it is improper in raising the question as to the equipment of the engines of the defendant, when there is neither allegation nor proof of their defective equipment; third, that it excluded from the jury consideration of any evidence as to the fires starting in weeds and grass along defendant’s right of way; fourth, it advises the jury that reasonable care in equipment and operation' are absolute defenses to the action, whereas they only go to rebut the presumption created by the law, and create the necessity of .the plaintiff’s show — 365 — ing actual negligence. A number of authorities are cited to sustain these contentions; among them, St. Johns & H. R. Co. v. Ransom, 33 Fla. 406, 14 South Rep. 892. There is no doubt of the correctness of the law laid down in this case. There is no doubt that it is the duty of a railroad company to keep its right of way adjacent to the property of others free from combustible material, and that it is liable for its neglect of such duty when it results in damage to others. The first two grounds of objection have been discussed under assignments on other instructions. As to the third ground of objection it does not seem to us that it is tenable. The last clause of the instruction expressly informs the jury that it was not meant to exclude from their consideration other negligence of-the defendant than that therein specifically referred to, and so the fourth objection fails, because the instruction does not make reasonable care in equipment and operation of the engines absolute defenses to this action. This, it seems to us, becomes perfectly clear when this instruction is construed in connection with the first and second instructions given on behalf of the plaintiff, and discussed under the tenth assignment. The facts which existed in the case of St. Johns & H. R. Co. v. Ransom, supra, which was tried by a referee, are different from those in the case at bar, and both in the declaration and proofs was very .much stronger against the railroad company. The twenty-third and twenty-fourth assignments are based on instructions given at request of the defendant. It is contended that these instructions limited the jury in the assessment of damages, if they found for the plaintiff, to the net market value-of the property destroyed, and excluded interest. Inasmuch as the verdict was for the — 366 — defendant, it is unnecessary to discuss these assignments. The twenty-fifth assignment is based on the twenty-second instruction given at request of the defendant, vis.: “The declaration in this case does not allege that the fire destroying the lumber was caused by a fire spreading from burning crossties set on fire along the defendant’s right of way; and, if you believe from the .evidence that the origin of the fire destroying the lumber was the burning crossties, then you should find for the defendant.” The objection to this instruction is that it was without foundation in the evidence and is misleading. There was a good deal said in the testimony about a pile of burning crossties in the vicinity of the lumber that was burned. It seems to have been the first impression that the fire which burned the lumber originated from this source. No one saw the fire spread from the railroad track to the lumber pile, and it is not easy to determine positively from the testimony that it did so. The blue print map filed in evidence by the defendant, without objection on the part of the plaintiff, shows that the burned district did not reach from the burned lumber pile to the right of way fence of the defendant. Some of the witnesses for the plaintiff state that the grass was burned all the way from the railroad track to the lumber pile. One of them (Mr. Stokes)- states that, the map was all right as to the burned district — -he “guessed.” Doubtless in this state of evidence this instruction was requested and given, out of the abundance of caution, so as to cause the jury t.o confine their investigation to the issues made by the .pleadings. We discover no reversible error under this assignment. The twenty-sixth assignment is based on the following — 367 — instruction given at tire request of the defendant, vis.: “The court further instructs the jury that all persons erecting buildings or manufacturing establishments in the immediate vicinity of a railroad track, take and assume the risks of fire communicated from passing engines ; Provided, Such engines are equipped with the best known appliances to prevent the escape of fire, and are kept in repair, and are managed with reasonable care and skill.” The objections to this instruction besides those which have been discussed under other assignments are that the instruction is erroneous inasmuch as the proximity of the property of the plaintiff to the railroad is not negligence on the part of the plaintiff, but requires greater care by the defendant. The case of Jacksonville, T. & K. W. Ry. Co. v. Peninsular Land, Transp. & Manuf'g Co., 27 Fla. 1, 9 South. Rep. 661, is referred to as sustaining this contention. The instruction contains an abstract proposition of law, which as such and so far as it goes, it seems to us, is unobjectionable. Those who establish themselves in the neighborhood of railroads must know that trains are expected to run upon them, and if there are risks arising from no want of care in the proper equipment and management of engines and trains, those risks are not chargeable to the railroad, but are incidental to the situation. See cases cited in Jacksonville, T. & K. W. Ry. Co. v. Peninsular Land, Transp. & Manuf’g Co., supra; Toledo, Wabash & Western Ry. Co. v. Larmon, 67 Ill. 68, text 70. This instruction was immediately followed by one given by the court of its own motion, vis.: “The degree of care required to be used by a railroad company in the construction, equipment and operation of its locomotives, must be according to the circumstances, or in proportion to the danger; such care as is ordinarily suf — 368 — ficient under similar circumstances to avoid danger and secure safety.” The court had previously given the following instruction at the request of the plaintiff, ms.: “The court charges you that the law requires of railroads in the operation of their trains the exercise of ordinary care and caution so that the property of persons situated near or adjacent to their right of way shall not he damaged or destroyed by reason of the operation of such trains. Where such ordinary care is not exercised, and injury to the property of another is occasioned thereby, the plaintiff is entitled to recover for the value of the injuries sustained.” Considered together these instructions do not mean that the plaintiff was guilty of negligence in placing his property near the railroad, nor do they obviate the necessity of proof of care on the part of the defendant proportionate to the circumstances. The question of what was, under the circumstances, ordinary care was properly left to the jury. 3 Elliott on Railroads, Sec. 1228. The twenty-eighth assignment is based on the charge given by the court and mentioned above. The objections to it are that it is outside the issues made, that it excludes all evidence of negligence, and that it improperly defines the degree of care which was necessary with regard to clinkers. We think it unnecessary to say more than that, construed in connection with the other instructions and with the issues made by the declaration, it is not erroneous. The twenty-ninth assignment of error is based on the action of the trial judge in re-reading to the jury, at their own request, the twenty-fifth instruction given at the request of the defendant. It is contended that the jury were unduly impressed by this giving undue prominence — 369 — to this instruction, which was itself an erroneous statement of the law. This instruction, as we have already said, states an abstract proposition of law, which, taken in connection with other instructions of a like kind, was not an erroneous presentation of the law. It is true that where the court instructs the- jury upon what state of facts they must ñnd a verdict for a party, the instruction should include all the facts in controversy, material to the rights of the plaintiff, -or the defense of the defendant. 11 Ency. Pl. & Pr., 188. But this rule is not applicable to this instruction, nor to many others given in this case, where the same contention is made. There was no error in the judge’s re-reading this instruction to the jury at their request. 11 Ency. Pl. & Pr., 287. The thirtieth assignment is based on the action of the court in overruling the motion for a new trial. This assignment is submitted without argument, and we shall, therefore, treat it as abandoned. Thomas v. State, 36 Fla. 109, 18 South. Rep. 331; Charles v. State, 36 Fla. 691, 18 South. Rep. 369, and cases cited. In conclusion we feel constrained to express our disapproval of the practice which we think is illustrated by the defendant’s attorneys in this case and which is becoming common in Florida, vie.: That of requesting an unnecessarily large number of instructions to the jury. Besides the risk of error thereby created — for it is almost, impossible for a trial judge to give a critical examination to a multitude of instructions — they are calculated to mislead and confuse a jury, and impose upon a reviewing court an unnecessary burden. It is either obliged to spin — 370 — out its opinions to a wearisome length, or abbreviate in such a manner as to be subject to the criticisms of having .over-looked the issues. 11 Ency. Pl. & Pr., 150. 'The judgment of the lower court is affirmed. Taylor and Parkhill, JJ., concur; Shackleford, C. J., Cockrell and Whitfield, JJ., concur in the opinion.