Bell v. Ala. Midland Ry. Co.

Head, J. The second plea of defendant, setting up that the property burned was insured and that the plaintiff had collected the insurance money, &c., was withdrawn, and alie vid snce insapp )rb thereof to which plaintiff had objected was excluded from the jury by the court. We will, therefore, not consider assignments of error upon that subject. The negligence counted on, as causing the fire, and destruction of plaintiff’s property, is the careless and negligent handling, running and operating defendant’s locomotive engine, over and along its line of road, by defendant’s servants, whereby fire was emitted from the engine and ignited and destroyed the property. It is not alleged that there was any defect or imperfection of any kind in any part of the engine or train. We have examined the evidence and are unable to find any, tending in the remotest degree, to show any act of negligence on the part of any servant engaged in operating the engine and train. Indeed, it is not pointed out in the somewhat extended written argument of appellant’s counsel, wherein any servant is supposed to have been negligent in operating it; except it is said, that a city ordinance of Troy, in which city the injury occurred, prohibited the running of trains through the city at a greater rate of speed than six miles per hour, and that he was running, at the time of passing the property which was burned, on the morning of the fire, six or eight-miles-per hour. The whole argument, aside' from this point, is, that the enginé was defective, and that that question •should have been submitted; to the jury, which could not 288 be done under the complaint. If it be conceded, with the burden of proof on plaintiff to show the excessive speed, that the jury could legitimately conclude from this evidence of the conductor, that the speed was in excess of six miles per hour, there is no evidence whatever tending to show causal connection between the excess and the injury. It cannot be judicially known that an engine running eight miles per hour is more likely to emit sparks and ignite property than one running six miles per hour. It is a matter for proof, with the burden on the plaintiff. The general affirmative charge was therefore properly given for the defendant. There was no error in refusing to permit plaintiff' to prove that fire blew across the town from where the buildings were burning and set fire to the pound pen west of the public square, and *that the court house caught on fire, Indeed, the exception is not insisted on in argument. The other exceptions are manifestly without merit, • Affirmed.