St. Louis, Iron Mountain & Southern Railway Co. v. Clements

Riddick, J., (after stating the facts.) This is an appeal by the railway company from a judgment rendered against it for the value of cotton destroyed by fire. The plaintiff alleged that the cotton was destroyed by the negligence of a crew of section hands in the employ of defendant, who set fire to a pile of old cross-ties not far from the platform on which the cotton of plaintiff and others, in all 15 or 20 bales, was stored, and that sparks from this fire ignited and destroyed the cotton. The evidence, we think, was sufficient to sustain the verdict. It was shown that a pile of cross-ties was set on fire and left burning only sixty-nine feet from the platform on which the cotton was placed. The wind was blowing from the fire towards the platform, and sparks were seen to fly in that direction, and witnesses who came to the fire first testified that it seemed to have commenced on the side next to the place where the cross-ties were burned. As the evidence did not point to any other source of the fire, the jury were justified in concluding that it must have been communicated by sparks from these burning cross-ties or from embers left after the ties were burned. This conclusion of course rests on circumstantial evidence alone, and it can not be said with absolute certainty that it is correct. It is possible, as counsel for defendant suggested, that the cotton was set on fire by some incendiary, or that the fire originated from spontaneous combustion, or from the carelessness of some un-known person. But these are mere speculations outside of the evidence, and the jury had the right to reject them and base their verdict on what seems from the evidence to have been the most probable cause. Nor do we find any error in the instructions of the court, a careful reading of which has convinced us that they are as favorable to defendant as the law warranted. Counsel for defendant complain that the court rejected certain instructions based on the theory of contributory negligence, but the court covered this point in an instruction in which the jury were told that, until a bill of lading was issued for the cotton, or it was received by the conductor or some agent of the company, “it was the duty of the plaintiff to watch his cotton and care for the same in such manner as a reasonably prudent person would have done under similar circumstances; and if plaintiff neglected this duty in any respect, then he was guilty of such contributory negligence as would bar a recovery.” The burden was on the defendant to show contributory negligence, and the mere fact that plaintiff, in passing through the town on the day preceding the night when the - cotton was burned, saw that the ties had been set on fire does not show that his failure to watch and protect the cotton from this fire was contributory negligence. It is not shown at what time of day Clements saw the burning ties; but, as he testified that he was not at the store late that afternoon, it is fairly inferable that it was not long after the ties had been set on fire that he saw them. The section hands were then in charge of this fire, and he might well suppose that they would not leave a fire burning so close to this cotton. In any view of this matter we think no error is shown prejudicial to defendant. Another point made is that the court erred in permitting the attorney for plaintiff to propound certain questions on cross-examination of witness Langley, the section foreman, in reference to a request made by him of Clements that in presenting his claim for the price of the cotton he should not refer to the burning ties. But, while these acts of the witness were not evidence against the company, it was proper to consider them in connection with his own testimony, in order to determine the weight to be attached to such testimony, and for that reason it was a proper subject of comment in the argument of counsel. The instruction asked by appellant that the jury should disregard this evidence and argument entirely was improper. Had counsel asked that this evidence be considered only in ascertaining the weight to be given the testimony of Langley, but not as showing negligence against the company, the presiding judge would no doubt have granted the request. There are other points discussed, but after due consideration thereof we are of the opinion that the judgment should be affirmed, and it is so ordered.