Kimball & Fink v. Borden

Buchanan, J., delivered the opinion of the court. The first error assigned is to the action of the court in permitting testimony to go to the jury showing that sparks were ■emitted from an engine or engines of the defendants to prove a negligent habit of their employees or agents, and a defective .construction of the engines in use, without showing that such £parks set fire to property along the line of the railroad. This .assignment of error, even if the law be as contended for by the defendants, could not be sustained. It is based upon a mistake of fact. The record clearly shows that the witness, whose testimony was objected to, testified that the sparks referred to did set on fire property along the line of the railroad. The action of the court in giving plaintiff’s instruction No. 4 is assigned as error. It is insisted that this instruction made it the duty of the defendants to provide such spark arresters and mechanical contrivances as would thoroughly or entirely prevent the escape of sparks and coals from the defendants’ engines. If that be the meaning of the instruction, it is clearly erroneous, for- no such duty is imposed upon a railroad company. It is incumbent upon a railroad company to avail itself of the best mechanical contrivances and inventions in known practical use vto prevent the burning of private property by the escape of [483] sparks and coals from its engines, and when it has done this it has performed its duty in this respect. Brighthope Railway Co. v. Repass, 76 Va. 443. The instruction does contain language which, disconnected from what precedes it, furnishes some ground for the criticism of defendants’ counsel, but, when the instruction is read and considered as a whole, we do not think that the jury could reasonably have given it the construction contended for by the defendants’ counsel, or that they could have been misled by it. The instructions of the court to the jury should be clearly expressed, and the law as to‘ the question in issue clearly and distinctly stated; but where an instruction construed as a whole presents the law to the jury fairly and correctly, in a manner not calculated to mislead them, the fact that some of its expressions standing alone might be regarded as erroneous or misleading furnishes no ground for reversing the judgment. The assignment of error to the action of the court in amending the defendants’ instruction Eo. 2 must be overruled for like reasons as it, and the last assignment of error, involve the same question. The refusal of the court to give defendants’ instruction Eo. 3 is assigned as error. By that instruction the court was asked to tell the jury in effect that a land owner who built houses of wood near a railroad in which he conducted the business of a cooper was required to exercise all reasonable care and precaution to guard against fires from engines passing on the railroad, and, if he permitted shavings or other dangerous combustible material to accumulate in and around, such buildings, by means of which fire was communicated to them from such engines, there could be no recovery against the railroad company. The question of contributory negligence in cases of this kind was considered by this court in the case of Richmond & Danville R. R. Co. v. Medley, 75 Va. 499. In that case it was claimed that the plaintiff was guilty of contributory negligence by fail [484] ing to remove dry grass and broom sedge from Ms land adjoining, the railroad, by means of which the fire was conmnmicated to the buildings and timber injured. The conclusion reached in that case was that the doctrine of contributory negligence does, not, as a general rule, apply to tMs class of cases. “ Ko obligation,” said the court, “ rests upon the owners of property along the line of a railway to keep it in a condition to be always safe from the fires thrown from passing engines. They are not bound to remove combustible material on their own land in order to obviate the consequences of possible or even probable negligence of the company. If the proprietor of adjacent lands leaves Ms property in an exposed condition, and it is destroyed by fires from the company’s furnaces without fault or negligence on the part of the latter, it may be conceded, for the purposes of the argument, that the owner is without redress; but is he remediless in the event of its destruction by fires resulting from the negligence of the company, either as respects the conduct of its trains, or the control and management of its track and right of way? The Legislature, in legalizing the use of engines running through the country, scattering fire and cinders on all sides, over lands in the vicinity of the road, certainly did not intend to impose any additional burdens or duties upon tbe owners of such lands. They are subject only to sucb risks as are necessarily incidental to the proper and legitimate operation of the road by those having charge of it. Any other rule would impose upon property-holders near the line of a railroad the necessity of removing their grain, hay, and whatever is of a combustible nature to some distant point, not infrequently of changing'the whole course of husbandry—of incurring expenses, and of exercising ceaseless vigilance in order that the company may negligently permit the accumulation of dangerously inflammable matter upon its own lands, liable at any moment to be ignited by fires from its own locomotives. It has been well said that fire is an extremely dangerous element, even when employed [485] for a lawful purpose. The exercise of due care and diligence is imposed upon him who uses it, and sets it in motion for his own advantage, and not upon him who is merely passive, confining himself to lawful employment and business in the conduct of his own affairs.” We have quoted thus largely from the opinion in that case to -.show that there is no foundation for the contention that the statement of law contained in the rejected instruction is sustained by that decision. There are some cases which hold that the voluntary and needless accumulation of shavings or other combustible material upon land near the railroad would be deemed evidence of contributory ■negligence; but, as has been well said by Shearman & Kedfield in their work on [Negligence, sec. 679 (5th ed.), the entire doctrine of those cases is open to serious question, and certainly no «exposure of inflammable materials in the orderly conduct of a legitimate business at a place where, if the railroad did not exist, such materials could thus be used without fault will relieve the company from liability for its own negligence. See Kellogg v. Chicago, &c. Rwy. Co., 26 Wis. 223 (7 Am. Kep. 69), where the general question is ably discussed, and the authorities cited; Vaughan v. Taff. Railway Co., 3 H. & N. 743; Same v. Same, 5 H. & N. 679. But those cases do not hold that the voluntary and needless •accumulation of shavings or other combustible material upon land near the railroad is per se such negligence as will prevent the plaintiff from recovery It is merely evidence tending to show contributory negligence which should be submitted to the jury. See 2 Shearman & Redfield on Neg., sec. 679; Murphy v. C. & N. R. Co., 30 Am. Rep. 721, where that class of cases ■is cited. Even under those authorities the instruction in question was clearly erroneous, for it does not leave it to the jury to say whether or not upon the whole case the plaintiff was guilty of •contributory negligence, but declares that carrying on the busi [486] ness of a cooper in wooden buildings erected near the railroad,, and, permitting shavings or other dangerous combustible material to collect around them, is, as a matter of law, such, negligence as prevents a recovery. The instruction, in any view of the case, was clearly erroneous. The remaining question to be considered is whether the court erred in instructing the jury that “ the measure of the liability of the defendants in this action, if liable at all, according to all the instructions and all the evidence in the case, is to the extent of the proven damages with interest thereon from the 28th day of September, 1898.” The objection made to the instruction is that it took away from the jury the discretion given them by sec. 3390 of the Code of determining, from what period, if at all, their verdict should bear interest. TJpon this question the court is equally divided. It follows, therefore, from what has been said, that the judgment complained of must be affirmed. Affirmed.