Charleston & Western Carolina Railway Co. v. McElmurray Bros.

Russell, J. 1. The petition, properly construed, based the plaintiff’s right of action not only upon the negligence of the defendant in so operating its engine as to cause an unusual emission of sparks, but also upon the negligence of the defendant in permitting the accumulation of combustible matter on its right of way. It therefore set forth a right of action, and the court did not err in overruling the general demurrer. The special demurrers were without merit. The plaintiff was not required to state the particular agent of the defendant whom he notified of the company’s negligence as to the accumulation of trash on its” right of way; for the notice was unnecessary. 2. There being no bona fide effort to brief the evidence as required by law, and the remaining assignments of error being dependent upon the evidence, the judgment of the lower court must be affirmed. Judgment affirmed. March 1, 1913. Action for damages; city court of Bichmond county—Judge W. F. Eve. January 5, 1912. The action was for damages on account of fire alleged to have been caused by sparks from the locomotive of a passenger-train passing the plaintiffs’ land. The petition alleges, that the right of way of the defendant railway company, running through the land of the plaintiffs, and immediately adjoining that portion which was burned over by the fire alleged to have been set out by the defendant’s locomotive, was, just previous to the said fire, in a foul condition from an overgrowth of dry grass, weeds, “and brush, and that due notice had been given, in writing, to the railway officials of this condition, and of the danger to be apprehended from fire which might be set out by their passing locomotives; and, further, that there was no attempt on the part of the defendant railway company to clean off the said right of way. Paragraph 4 of the petition is as follows: “That said defendant negligently permitted large quantities of dry grass, weeds, trash, and underbrush to gather upon its said right of way, and, though it was advised in writing, prior to the date of the injury hereinafter stated, of the dangerous condition of said right of way, negligently allowed said inflammable and combustible material to remain upon the said right of way.” In the 5th and 6th paragraphs it is alleged that on the 14th and 27th days of November, 1910, respectively, an engine operated by the defendant negligently emitted sparks which set fire to the said right of way, which fire was communicated to the plaintiffs’ 'adjacent fields, destroying specified property of the plaintiffs. It is alleged that “the defendant was guilty of negligence in this: (a) That the engines used by said defendant as aforesaid were without a safe and sufficient spark-arrester, and safe and sufficient devices and appliances for preventing the emission of sparks, which set fire to the right of way as aforesaid. (6) That said engines were so carelessly and negligently operated as to allow the emission of sparks, which set fire to the right of way as aforesaid, (c) That said defendant negligently permitted large quantities of dry grass, weeds, trash, and underbrush to' gather upon its right of way as aforesaid.” The defendant demurred as follows:' “(1)"Because no cause of action is alleged in plaintiff’s petition against this defendant. (2) Defendant demurs to the following paragraphs of the petition, namely: To paragraphs 4 and 6, because no copy of the writing therein referred to is attached to the petition; to paragraph 5, because plaintiff fails to allege what particular kind of vetch was growing on his field.’on the 14th day of November, 1910; also because plaintiff fails to allege when he discovered the fire in question, and why -he did not discover it sooner than he did.” The court overruled the demurrer. The trial resulted in a verdict for the plaintiffs. The defendant’s motion for a new trial was overruledj and it excepted to that judgment, as well’ as to the overruling of the demurrer. W. K. Miller, for plaintiff in error. J. O. O. Black Jr., contra.