McMillan v. Manistee Mill Co.

DOWDELL, C. J. Of the errors assigned on the record, only two are insisted on in argument. The first question urged and insisted on relates to the ruling of the trial court in the exclusion of evidence, offered by the plaintiff, as to the action of the town authorities of the town of Repton, prohibiting the defendant from loading and unloading wood in the town on account of danger from fire incident to the emission of unusual quantities of sparks from defendant’s engine. This evidence was clearly inadmissible. It was no more than a declaration by a third party, a stranger to the suit, that the defendant’s engine was dangerous in the emission of unusual quantities of sparks. The second question insisted on is based upon the assignment of error in the giving, at the request of the defendant, of charge 5. The facts hypothesized in this [171] charge are insufficient to acquit the defendant of legal liability, in the operation of its locomotive, for damage to the property of plaintiff from fire caused by sparks from defendant’s locomotive. This charge ignores the duty of providing suitable appliances for preventing the emission of sparks in dangerous and unusual size and quantity. On the authority of Horton v. L. & N. R. R. Co., 161 Ala., 49 South. 423, we hold the charge bad, and that in the giving of it the court erred. For this error, the judgment is reversed, and the cause remanded. Reversed and remanded. Anderson, McClellan, and Sayre, JJ., concur.