Birmingham Railway, Light & Power Co. v. Hinton

McCLELLAN, C. J. The averments of negligence in the counts of the complaint are sufficient. — Louisville & Nashville R. R. Co., v. Marbury Lumber Co., 125 Ala. 237. The counts aver that defendant negligently set fire to and burned the house in which plaintiff resided with his father and mother and other members of the family; that he was in the house when it was ignited, and was burned while escaping from it during the progress of the fire and by the fire which was burning the house. It thus sufficiently appeal's that defendant’s negligence was the proximate cause of plaintiff’s injuries. — Rajnowski v. Detroit, Bay City & A. R. R. Co., 74 Mich. 20; S. C. 78 Mich. 681. It was not necessary for the complaint to negative contributory negligence on the part of the plaintiff; such negligence is defensive matter. The evidence, moreover, showed that plaintiff at the time of being injured ivas only five years of age, so that the issue of contributory negligence could not be made in the case. [612] If the court erred in receiving evidence that the defendant had trackmen in its service, the error was without injury to the defendant. The testimony of Mrs. Sarah McDonald to the effect that the sparks emitted that night by defendant’s engine were unusual in quantity and size; that they were large and attracted her attention and that she had never seen “it throw out fire that way before,” was properly received. Sherrill v. Louisville & Nashville Railroad Co., (M. S.) 37 South. The fact that the plaintiff, an infant of the tender years above stated, was at first taken safely out of a room of the burning house and left in his night clothes on the burning veranda, and, the night being very cold, went back into the room and there received the injuries be complains of, did not break the chain of causation between defendant’s negligence and such injuries. No fault is imputable to him for being left on the veranda, that he was there peculiarly exposed to the cold — the house then burning on the inside — was a natural consequence of the house being on fire, and that he went back into the room under the circumstances was a natural sequence. The 5th and 6th charges requested by defnd-ant were, therefore, properly refused. The law undertakes by the oath administered to jurors to bind their consciences to return verdicts according to the conviction of their mvnds. Evidence is addressed to their minds and not to th eir consciences; and it would tend to their confusion to give prominence to the givings out of their conscience to the exclusion or subordination of their mental faculties as the court was asked to do by charge 4. Nothing need be said in support of the court’s refusal to give the general affirmative charge and the affirmative charge on count 1 requested by defendant. It is strongly insisted that the court erred in refusing to give the affirmative charge requested by defendant on count 2. The count charges that plaintiff’s injuries ■were caused “by reason of the negligence of the defendant in this, that the defendant negligently selected said engine; that the defendant negligently maintained said [613] engine in a defective and unsafe condition so tbat the sparks and fire were thereby permitted to escape and be emitted from said engine; tbat the defendant negligently operated and managed said engine; that the defendant negligently failed to furnish and equip said engine with a proper spark arrester or appliance to prevent the escaping of sparks and fire therefrom; tbat the defendant negligently operated and managed said engine, thereby and by reason of said acts of negligence causing the communication of fire from said engine to the house.” etc., etc. The averments of the negligent selection of the engine and of its negligent maintainance in a defective condition, etc., would be proved by, the facts that it was improperly constructed or was in improper condition with reference to spark arresting appliances. So> that in reality the averments of the count are that the engine was not properly constructed; that it was in improper condition, and that it Avas improperly handled or operated. There Avas evidence going to shoAv that sparks from this engine Avere thrown onto and set fire to the house. There Avas also evidence that a properly constructed and equipped engine with reference to sparks, Avitli its appliances for arresting sparks in proper condition, and handled or operated with due care Avould not loare thrown sparks onto this house, sixty or seventy feet distant, and set fire to it. This evidence raised a presumption in support of each of these aArerments of negligence' in the face of which, even assuming that it Avas upon the plaintiff to prove all of them, the court could not give the affirmative charge on the count for defendant. We are by no means convinced that the City court erred in overruling the motion for a new trial. Affirmed. Haralson, Dowdell and Denson, J.J., concurring.