Sherrill v. Louisville & Nashville R. R.

McCLELLAN, C. J. — The emission of sparks from a locomotive in unusual and. dangerous quantities, and of unusually large size is evidence tending to show that either the locomotive was improperly constructed, or that its appl lances 'for arresting sparks are not in proper condition, or that it was improperly or negligently operated at the time. In cases of this sort therefore, it is always competent to prove'that the locomotive supposed to have thrown the sparks upon adjacent property, and thereby set fire to it, was at the time of its phssage emitting sparks in greater quantities and of larger size than are emitted by locomotives generally; and not only may a witness who has had opportunity for observation in this connection testify that the particular locomotive was emitting sparks in unusual quantity and of unusual size as compared with other engines, but he may testify that the locomotive in question on that occasion was exceeding in these respects the emissions of other locomotives passing the point about the same time. The question is quite different from that discussed in the cases of Miller and Malone, (109 Ala. pp. 500. 509), where it was proposed to prove the communicaiion of fire by sparks from engines on other occasions. In our opinion, therefore,' the circuit court erred in excluding the proposed testimony of the witness Nichols tending to show that this locomotive on this occasion as it passed through the town of Hartselle was emitting a greater quantity of sparks and larger sparks than other engines he had observed about that time or other engines he had seen. We find no error in the other rulings of the court on the competency of testimony. One or two such rulings which may have been of doubtful propriety were rendered innocuous by the subsequent course of the' trial. The bill of exceptions does not affirmatively show that ill the evidence adduced on'the trial is set out therein Therefore, while this state of the record raises no presumption in support of the rulings upon the admissibility of evidence (Batton v. Cuthbert, 132 Ala. 403), it does raise a presumption of the correctness of the court’s rulings upon request for affirmative charges, whether on the whole complaint or upon particular counts, and also [7] as to other charges relating to the weight of the whole evidence. Upon this consideration Ave pretermit'further discussion of the refusal of the court to give the general charge requested by plaintiff on counts 1 and A. and also the giving-of the affirmative charges requested by the defendant upon- counts 2, 3, 4, 5 and 6. Charge D, refused to plaintiff, is argumentative, and is affirmatively bad in its declaration that the defendant was “required to exercise the utmost care,” etc.; if not also in oilier respects. Tiie communication of fire to adjacent property bv sparks from a passing locomotive raises'a presumption of negligence against the railway company; but tlie fact of the emission of sparks in unusual quantity and size without proof of such communication does not raise such presumption; such fact merely tends to shoAV negligence. Charge E asked by plaintiff was properly refused. Charge 1 for defendant should not have been given. It may have been intended to declare that there was no positive evidence of negligence, but the charge in fact declares that there Avas no evidence of positive acts of negligence. There Avas circumstantial evidence upon which the jury had the right to find that the engineer was guilty of' “positive acts of negligence” in the manner of working Lis engine. So, too, charge 29 Avas improperly given. To say the least it was not for the court to say that the fact that a locomotive throws sparks apparently as large as the end of a person’s finger.thirty-five feet high, affords no inference that the engine Avas improperly constructed, or in a had condition or improperly handled, especially when there was evidence before them that a properly constructed engine in good condition and properly operated would not throw sparks of that size at all, and Avould not throw sparks of any size thirty-five feet high. Charge 30 had a tendency to confuse the jury, and to mislead them to> the conclusion that the burning of plaintiff’s house could not be ascribed to the sparks because sparks could not have started a fire growing to the dimensions of this one when it was discovered in the [8] time which elapsed from the passing of this locomotive to the time of the discovery. Several of the other charges given for defendant were faulty in directing a verdict for defendant on the jury’s being reasonably satisfied that the locomotive was properly constructed and properly handled, when it was open to- them to find that though there was no negligence in these respects yet it was not in proper condition, and that the fire resulted from a defective condition of the engine or its appliances to prevent the escape of dangerous sparks; and two or three of the charges- given for defendant might-well have been refused because argumentative. Reversed and remanded. Haralson, Dowdell and Denson, J.J., concurring.