Alabama Great Southern Railroad v. Johnston

SHARPE, J. This action is to recover on account of alleged nel'igence of defendant in causing or allowing fire to he communicated by means of a locomotive to certain premises claimed by the plaintiff. The locomotive referred to is not identified by anything in the pleadings or by any evidence introduced on the trial except by such inferences as might be drawn from circumstances not amounting to direct proof. The evidence on that subject was uncontradicted and tended to show the following facts: The fire on these premises began on the. porch of a building about forty feet from the railroad; engines had gone over the road on that day, the last one having passed about an hour and a half before the fire was discovered; a pile of sawdust at an old mill site belonging to a third person and lying near the railroad on the' side opposite to plaintiff’s premises was then burning -and had been burning for several days and a strong wind urns blowing sparks from it toward the building; the -saw dust had -several times previously been fired by sparks or cinders escaped from defendant’s engines, and in that way was- freshly fired about three days before this injury; the road grade was unlevel, and when going [294] up grade there the engines ordinarily threw out a great many sparks which, as one witness expressed it, were sometimes in wads half as large as his fist. A witness for plaintiff after testifying that an engine had passed during the same day of and not long before the fire, and that she had not noticed whether sparks came from it or not, was allowed., against the defendant’s objection, to state that “the A. G. -S. engines going up that grade, habitually threw out a large amount of -sparks about that time.” Whether this statement would have been admissible if the complaint was so drawn as to -confine the plaintiff to proof of negligence to the use or management of a particular engine, or if the proof showed with certainty that a particular, engine caused the fire, we need not here decide. On that subject' there appears a conflict in adjudications. See IB Am. & Eng. Ency. Law, 515; Thompson on Neg., 159; Shearman and Redfield on Neg., § 675. It was competent in this case especially in view of the latitude -allowed by the averments of the -complaint and the necessity of resorting to circumstantial evidence to trace the origin of the fire. In Shear-man and liedfield on Neg., supra, the rule is thus stated: “When the particular engine which caused the fire cannot be fully identified, evidence that sparks and • burning coals were frequently • dropped by engines passing on the same road upon previous occasions is relevant and competent to show habitual negligence, and to make it probable that the plaintiff’s injury proceeded from the same quarter. If the engine which emitted the fire is identified, then evidence on either -side as to the condition of other engines, and of their causing fires, has been held irrelevant, but not so if it is not fully identified.” As applicable to the present case we quote and approve the -conclusions stated in a well considered case and drawn- from -authorities -there collated: “It may, therefore, be considered as -settled, in cases -of this kin-d, where the offending- -engine is not clearly or satisfactorily identified, that it is competent for the plaintiff to prove [295] that the defendant’s locomotives generally or many of them, at or about the time of the occurrence, threw sparks of unusual size, and kindled numerous fires upon that part of the road, to sustain or strengthen the inference that the fire originated from the cause alleged.” — Henderson v. Philadelphia, &c. R'y. Co., 114 Penn. State, 461; s. c. 27 Am. St. Rep. 652. An early case holding the same doctrine is Sheldon v. Hudson River R. R. Co., 14 N. Y. 218; s. c. 67 Am. Dec. 155. In actions of this character it is not incumbent on the plaintiff to produce written evidence of title to the injured lands. Possession under a claim of ownership is evidence of title, and such possession if shown ,to have been in the plaintiff raises a presumption of 'ownership which is sufficient in the absence of evidence of ownership in another. — See 13 Am. & Eng. Ency. Law, 432, and authorities there cited. Though the cost of building new houses of the kind burned was not the criterion by which to measure the damages caused 'by their destruction, evidence of such, cost was relevant as tending to throw light on their value, and to assist the jury in assessing such value the diagrams of -the plan on which they were constructed were, in connection with the proof made of their correctness, properly admitted in evidence. It is a general rule that on cross-examination any fact may be elicited which tends to show bias or partiality toward the party in whose behalf the witness has testified. — 1 Greenl. Ev., (16th ed.) § 450; Burger v. State, 83 Ala. 36; Drum v. Harrison, Ib. 384; L. & N. R. R. Co. v. Tegnor, 126 Ala. 593. Under this rule if is permissible for a party by cross-examination of witnesses to show that they were by the party introducing them furnished free transportation for their attendance on the trial, or has given them the general 'privilege of riding on a railroad. Such facts may in the estimation of the jury have but slight weight or none at all in establishing a bias, but they cannot be held to have no tendency in that direction. The circumstances in evidence including the blowing of 'high wind from across the railroad to these premises, were such as left it open for the jury to presume [296] and to. find as a fact that tlic injury urns attributable to either the engine which fired the sawdust, or that which had recently passed. In either case, the cause was not so remote as to relieve the defendant from liability. That winds, might occur sufficient to carry fire from the saw-dust to those premises was an event the defendant ought reasonably to have expected and guarded against, to the extent at least of using due care to prevent an unnecessary escapement of sparks, and its failure to do so if proven shows negligence supporting the complaint. The wind was but a natural condition establishing the connection between the alleged negligence, if proven, and the injury, and was not in. a legal sense an intervening cause breaking such causal connection. No negligence is imputable to the plaintiff for not removing the sawdust for the reason, if for no other, that she is not shown to have any right to remove it. What has been said above will serve to show that •no error was committed by the trial court in its rulings on. evidence or in the refusal of charges requested by the defendant or in the part of its oral charge excepted to. ‘ . With reference to the charge given at plaintiff’s request, it is safe to assume that the evidence Avarranted no inference that the building caught fire from any source, other than the engines last passing, or the sawdust fire. Defendant’s counsel concedes or asserts in argument that “the proper inference, drawn from the evidence would be, that the houses Avere set on fire by the: sparks blown from the sawdust pile to the houses by the extraordinary high wind of that day.” This, court has held to the rule first applied here in L. & N. R. R. Co. v. Reese, 85 Ala. 497, that “the destruction of property by fire escaping from -a railroad engine raises an inference of negligence consisting ip a defect in its construction or in the appliances used, or Avant of due care in its management.” Such inference as is further shown in that case amounts to a .prima facie presumption which continues unless rebutted by evidence tending to overthrow the presump [297] tion. — L. & N. R. R. Co. v. Marbury Lumber Co., 126 Ala. 237; L. & N. R. R. Co. v. Malone, 109 Ala. 507. Since here no evidence was introduced tending to show any exercise, of care on the part-of defendant, the charge imputing negligence to the defendant as a conclusion correctly stated the effect of the evidence in connection with the attending presumption. The judgment will he affirmed.