Louisville & Nashville Railroad v. Watts

George, J. 1. Plaintiff wás the owner of four bales of cotton, stored in a warehouse near the right of way of the railroad company. The warehouse was burned and the cotton destroyed. The 7th paragraph of the petition alleged that the warehouse, together with plaintiff’s cotton, was totally destroyed by fire on the L6th day of November, 1915, “between four and ten o’clock p. m.” The 8th paragraph alleged that the fire originated from, and was caused by, live sparks, cinders, and coals, emitted from the locomotive engines of the defendant company, and the four succeeding paragraphs each described a particular engine, and alleged that the fire was communicated to the warehouse by each of the engines described. By special demurrer the defendant attacked the 7th paragraph of the petition because it failed to charge specifically the time when the alleged burning occurred, the 8th paragraph of the petition because it failed to allege what particular engines of the defendant caused the fire, and merely asserted a conclusion, the 9th, 10th, llthj and 12th paragraphs of the' petition because the engines referred to in each of said paragraphs of the petition were not distinctly and definitely identified and described. There were other grounds of special demurrer. The defendant did not demur to the petition upon the ground that it was contradictory, in that it alleged in one count the destruction of plaintiff’s cotton by sparks emitted from four separate engines of the defendant at one and the same time. Seasonable certainty is all that can be required, even by special demurrer. The plaintiff is not required to set out his whole cause of action in a single paragraph of his petition, and a general statement in a particular paragraph is not ob [639] jectionable, if particularized in subsequent paragraphs of the petition. Each of the engines referred to in paragraphs 9, 10, 11, and 12 of the petition was described with sufficient certainty to withstand a special demurrer. None of the remaining grounds of the demurrer were meritorious. 2. One of the main contentions of the defendant company was that its engines did not set out the fire. The court, in charging the jury, stated the contentions of the plaintiff, but nowhere in the charge called attention to this defense, insisted upon by the defendant, beyond a mere general reference to the plea and answer filed by it. The failure to submit this substantial defense, upon which the burden of the case rested/ will require a reversal, especially-since the charge of the court, considered as a whole, authorized a verdict for the plaintiff upon prima facie proof of the burning by the defendant unless the defendant showed that it exercised all ordinary and reasonable care and diligence in the equipment and management of .its engines. Judgment reversed. Wade, C. J., and Luke, J., concur.