Southern Railway Co. v. Darwin

ANDERSON, J. “The preferable doctrine appears to be that the owner of premises near or contiguous to a railroad right of way is not bound to anticipate negligence on the part of the railroad, and, by way of prevention, to malte provision against the communication of fire. Such proprietors in general owe no duty to railroad companies in this respect, and hence negligence, in its legal sense, can rarely be imputed to them. The rule in this connection, as most frequently expressed, is that the owner of property near or through which a railroad passes is entitled to use it in any natural and lawful manner, without incurring the imputation of contributory negligence in the occurrence of a fire; that he may use or permit his property to be used, or be and remain in the same manner or condition as if no railroad passed within the range of communication of fire. Such proprietors may cultivate their lands, or build upon them, or leave them in a state of nature, as they see proper, and take upon themselves thereby no other risks than such as are incident to the operation of the road with proper care by the company, and will, therefore, be entitled to damages for injuries by fires arising from the negligence of the company in the construction or management of its locomotives, or in the condition in which its track is suffered to remain. Considered in another aspect, the preferable doctrine simply means this: The owner of adjacent property assumes the risk of loss' from all fires started or communicated without the negligence of the railroad. If he permits his premises to be or remain in a highly combustible state, or locates his buildings in an exposed portion with reference to flying sparks, his risk is thereby increased. It may be argued in opposition to this view that such conduct on the part of adjacent proprietors would impose on the part of the railroad company an [317] increased and onerous burden of care and prudence, since, as bas been seen, what is due care on the part of the railroad is made to vary with the circumstances. But this is not so. In point of fact the most extreme degree of care to which railroad companies are ever held is fixed and reasonable. They are only required to employ machinery of approved construction, and to operate their engines with such precautions as are not inconsistent with the lawful, reasonable, and effective conduct of their business. Beyond this the abutting property owners take the risk.” 13 Am. & Eng. Ency. Law (2d Ed.) pp. 482-481, and cases there cited; L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 262, 28 South. 438, 50 L. R A. 620; L. & N. R. R. Co. v. Malone, 116 Ala. 600, 22 South. 897. “A person has the right to construct buildings on any part of his property, and to enjoy the same, without rendering himself liable to the negligence of a railroad company, whereby they are destroyed by fire. It has been held, therefore, that one is not guilty of contributory negligence in building a house near a railroad track, so as to prevent a recovery, if burned through the negligence of the company, though he knew the danger of fire was thereby increased.” 13 Am. & Eng. Ency. Law (2d Ed.) 487. Nor does the law require a party to stand guard over his property, as was held in the case of Tien v. Louisville, etc., Ry. Co., 15 Ind. App. 304, 44 N. E. 45, and Jacksonville R. R. v. Peninsular Land Co., 27 Fla. 1, 157, 9 South. 661,17 L. R. A. 38, 65, and which we approve. A person having property adjacent to a railroad is not bound to keep his property in such a condition as to guard against the negligence of the railroad company, but every person has the right to enjoy his property in an ordinary manner; and while one is charged with the duty of saving his property when he can do [318] so, he is under no obligation to stand guard over it, and continually watch it to protect it from the negligence of a railroad company. “A proprietor of contiguous property is not required to remove combustible matter from his own land in order to provide against the consequences of possible or even probable negligence on the part of a railroad company in communicating fire thereto.” 13 Am. & Eng. Ency. Law (2d Ed.) 485, and cases cited in note 3. “On the other hand, it has been declared that the negligence of the plaintiff which precludes a recovery in an action for damages for destruction by fire is where, in the presence of a seen danger (as where the fire has been set), he omits to do what prudence requires to be done under the circumstances for the protection of his property, or does some act inconsistent with its preservation. Where the danger is not seen, but anticipated merely, or dependent on future events (such as the continuance of the defendant’s negligence), the plaintiff is not bound to guard against it by refraining from his usual course, if otherwise consistent with the conduct of a prudent man in the management of his property and business.” 13 Am. & Eng. Ency. Law (2d Ed.) 481. This last principle is the one realized and enunciated in the case of L. & N. R. R. v. Sullivan, 138 Ala. 379, 35 South. 327, the opinion in which proceeds upon the idea that the pleas set up negligence on the part of the plaintiff occurring subsequent to the negligence complained of on the part of the defendant, but does not hold that the condition of plaintiff’s premises and his failure to guard same, prior and up to the negligent acts of the defendant, amount to contributory negligence. The special pleas in the case at bar do not set up subsequent contributory negligence, but attempt merely to charge the plaintiffs with contributory negligence growing out of the condition of their premises [319] and their failure to keep a watch over same prior and up to the negligence charged against the defendant, and the demurrers thereto were properly sustained. It is true the special pleas in the case at bar bear a striking resemblance to pleas 2 and 3, which were held good in the case of L. & N. R. R. Co. v. Sullivan, supra. But a comparison of the pleas in said case with the only' count they answer, the sixth, will show that they set up" negligence on the part of the plaintiff subsequent to the negligence of the defendant, as set out in the said sixth count otf the complaint, and not conditions existing prior to the negligence charged to the defendant. The negligence charged in the sixth count was placing by the defendant close to the plaintiff’s property dry grass and weeds; and the negligence in the seventh count was placing cotton that had been saturated with oil near plaintiff’s property. The pleas set up the negligence of plaintiff in not removing them, knowing of the danger, and which was an omission subsequent to the negligence charged to the defendant. An examination of the original brief of counsel for appellant in the Sullivan case, supra, shows a concession that a plaintiff could not be held guilty of contributory negligence for failing to anticipate and guard against the future negligence of the defendant; the contention being that the pleas set up “subsequent negligence in failing to protect themselves against the result of the prior negligence of the defendant known to the plaintiff, and where he had the means of protection himself from danger therefrom without unreasonable expense or trouble,” The trial court did not err in permitting the witness McC'utchen to testify that he saw the train throwing “large volumes of sparks.” The jury could well infer that it was the engine in question. It was seen at S'cottsboro shortly before it reached Darwin’s gin, and was [320] going in that direction; and the fact that it was throwing ont large volumes of sparks tended to show that it did not have a good spark arrester or that it was out of repair. The trial court did not commit reversible error in giving charges 2 and 8, requested by the plaintiffs. They are copies of charges given in the case of A. G. S. R. R. v. Sanders, 145 Ala. 449, 40 South. 402. While the defendant proved that the engine was properly handled and had a modern and perfect spark arrester, there was contradictory evidence sufficient to justly contrary inferences by the jury. The jury examined the spark arrester and heard the testimony as to the size of sparks emitted from the engine, and which was sufficient to create an inference that it had no spark arrester, or, if it did, that it was out of repair, or else not properly adjusted. There was also evidence tending to contradict the engineer as to the handling of the engine. He testified that at the time he was opposite the gin it was a downgrade and the steam was shut off; while the plaintiff offered evidence that there was an upgrade at that point and the engine was puffing and emitting a large and unusual quantity of large sparks. The trial court did not err in refusing the requested charges of the defendant. — Clark Case, 136 Ala. 450, 34 South. 917; Sanders Case, supra; L. & N. R. R. Co. v. Marbury Lumber Co., supra. The trial court did not err in overruling the motion for a new trial. The judgment of the circuit court is affirmed. Affirmed. Tyson," O. J., and Haralson, Dowdell, Simpson, and Denson, JJ., concur.