McCary v. Ala. Gt. South. R. R.

de GRAFFENRIED, J. The plaintiff, J. H. McCary, had a manufacturing plant which was destroyed by fire. The plant was situated near the tracks of the defendant, the Alabama Great Southern Railroad Company. The fire occurred after 1 o’clock a. m. of November 12, 1908, and before 4 o’clock a. m. of that day. The plaintiff, being of the opinion that his plant was set fire to by sparks emitted from a passing locomotive of the defendant and that the sparks were emitted bjr the locomotive either on account of its improper construction or equipment or on account of the negligent manner in which it was, at the time the sparks were emitted, handled by the servants of the defendant who had control of it, brought this suit against the defendant to recover the value of the property destroyed by the fire. There was evidence on the part of the plaintiff tending to show that shortly before the fire was discovered a locomotive of the defendant passed the property; that the wind, at that time, was blowing from the direction of the defendant’s tracks to the manufacturing plant; that the locomotive was, at that time, emitting sparks of unusual size and in unusual quantities; and that many of the sparks fell a distance of 125 feet from the locomotive onto some of the iniiammable portions of the defendant’s plant. Some of the evidence of the plaintiff tended to show that, when the sparks fell upon the defendant’s property as above stated, they were alive and of unusual size, and that some of the servants of the plaintiff stamped out such sparks as they saw fall upon the property. One of the witnesses testified, among other things, that: “I do not think there is an engine in existence but which will throw more or less live sparks. I will say that it is possible, but not probable, that an engine properly equipped with either of — 607 — those standard fittings there will throw crowds of sparks and lumps of fire 125 feet away from the track on which it is running. The faster an engine is running the farther the sparks fly from the engine, not to the sides, but backwards. I do not think it would be possible for an engine properly equipped with that wire to throw live sparks and cinders 125 feet off! to one side. If the wire was worn out that would make a different state of affairs. It could do it then.” The quoted testimony was the opinion of an expert, and in that opinion, in one place he says that it is possible but not probable for a properly equipped engine to throw live sparks 125 feet, and in another place he says that he does not think that such an engine properly equipped and handled could possibly throw live sparks 125 feet. Other experts testified that, in their opinion, a properly equipped and managed engine could not possibly throw live sparks a distance of 125 feet. The evidence of the defendant tended to show that the engine referred to was properly equipped and handled; that it threw out no sparks, or, if so, that they were not of unusual size and not in unusual quantities; that the wind was blowing from the direction of the plaintiff’s plant to the railroad; and that no engine of the defendant had passed the particular point for a considerable period before the fire. There was a jury and a verdict for the defendant, and a judgment of the trial court following the verdict. Thereupon the plaintiff filed in the cause a motion for a new trial. This motion was continued from time to time and was finally heard by the trial judge more than twelve months after the final judgment had been rendered in the cause. The bill of exceptions in this case was not filed until more than twelve months had elapsed after the trial of — 608 — the case, and, of course, cannot, on this appeal, be looked to for the purpose of revising actions or rulings of the trial judge on the main trial unless the “same questions were again presented and renewed on the motion for a new trial.” — Cobb v. Owen, 150 Ala. 410, 43 South. 826; Cassels’ Mill v. Strater Bros. Grain Co., 166 Ala. 274, 51 South. 969. (1) The proposition is well established that: “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. * * * One is not guilty of contributory negligence in building a house near a railroad track, * * * if burned through the negligence of the company, though he knew the danger of fire was thereby increased.” — Southern Railway Co. v. Darwin, et al., 156 Ala. 311, 47 South. 314, 130 Am. St. Rep. 94. It is, however, also well established that when such a person, “in the presence of a seen danger —as where the. fire has been set out — omits to do what prudence requires him to do” to protect himself from the loss, he is guilty of contributory negligence. When the gravamen of the action or the plea is the “alleged nonfeasance or misfeasance of another, as a general rule, it is sufficient to aver the facts out of which the duty to act springs.” — L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 South. 438, 50 L. R. A. 620. When the facts out of which the duty to act ■springs are shown with sufficient certainty and particularity, the negligent failure to so act may be averred in general terms. — L. & N. R. R. Co. v. Marbury Lumber Co., supra. Of course, the facts set up in the complaint or plea must be sufficient to show a duty to act, and, if the com — 609 — plaint or plea fails to show such facts, then the complaint or plea is subject to demurrer. Plea 3 sets up a state of facts which, if true, shows with sufficient certainty that the servants of the plaintiff, acting within the line of their employment, knew of the danger to the plaintiff’s property from the sparks after they had been thrown from the defendant’s engine and after they had fallen on or near the plaintiff’s property. In other words, plea 3 shows facts which cast the duty upon the plaintiff’s servants to put out the sparks and thus prevent the plaintiff’s injury, and the general allegation that they negligently failed to perform that duty and that the plaintiff’s property was burned on that account was sufficient. Plea 3 was not subject to the plaintiff’s demurrer. (2) The only questions presented by the bill of exceptions (except the question as to the sufficiency of the evidence to support the verdict), which we can consider, are presented by certain charges which the trial judge refused to give to the jury at the written request of the plaintiff and certain charges which the court, at the written request of the defendant, gave to the jury. It may not, at this point, he improper for us to say that •«’•hile charges which have a misleading tendency should never be given, at the request of either of the parties to a cause or by the court ex mero motu, the giving of such a charge to a jury will not work reversible error unless the appellate court is satisfied, after a candid reading of all the evidence in the case, that the jury were misled thereby. What we have above said with reference to charges 'which have a tendency to mislead applies with equal force to those which are involved, argumentative, or abstract. Such charges should never be given, but the giving of such charges will not work a reversal of a judgment at the hands of an appellate — 610 — court unless .the record affirmatively shows that the aggrieved party was injured thereby. We are led to make these observations because several of the charges, which were given to the jury on behalf of the defendant were misleading in their tendency, some of .them were argumentative, and some of them were involved. (3) In the case of L. & N. R. R. Co. v. Marbury Lumber Co., supra, this court declared that the rule which requires a railroad company, when the mere fact that fire is created by sparks emitted by one of its passing-engines is shown, to rebut the presumption that its engine was improperly equipped or improperly handled by proper proof, whs not a rule of liability, but simply one of evidence; that the presumption which, in such a case, the railroad is required to overcome by proper proof, is one of law and not of fact; and that, in s'uch a case, when such legal presumption is by such proper proof overcome, then, if there is no other evidence tending- to show negligence on the part of the railroad company, such company may ask and receive affirmative instructions in its behalf. The presumption of negligence which the law indulges in such cases, not being- a conclusive but a rebuttable presumption, may, in cases where there is no evidence tending to show negligence on the part of the railroad company except the mere fact that the fire originated from sparks emitted by a passing engine, by proper proof, as a matter of law, be broken down. It is for this reason that some courts, among them this court, have said that the presumption to which we refer is weak and inconclusive. When, however, there is other evidence in a case besides the mere fact that the fire originated as we have above stated, then the question of negligence vel non becomes a question of fact for the jury, and the jury must determine that question of fact from the evidence in the — 611 — case. In such a case a trial judge may well charge the jury that the mere fact that fire originates from sparks emitted by a passing engine is prima facie evidence only that the railroad company was guilty of negligence in the equipment or management of its engine, and that such railroad company may, by evidence sufficient to reasonably satisfy the jury that, on the named occasion, its engine was properly equipped and properly handled, overcome such prima facie presumption. In such a case — where the evidence is such as to present a question of fact for the determination of the jury and not a mere question of law for the court — the trial judge should not, however, charge the jury that the legal presumption to which Ave have above referred is weak and inconclusive, as such a statement is calculated to mislead the jury; such a statement might tend to lead a jury not skilled in drawing distinctions between presumptions of law and the presumptions which they, as jurors, are authorized to draw from the evidence, into the belief that the facts in the case themselves were weak and inconclusive when, in truth,, they were neither weak nor inconclusive. Charge 14, as applied to the facts of this case, was misleading and argumentative and was calculated to confuse the jury. The trial judge, for that reason, had best refused it. In this case there was evidence which, if believed, tended to show that the defendant’s engine was, on the occasion named, either improperly equipped or improperly managed independent of and in addition to the legal presumption which the law, for the purpose of shifting the burden of proof, drew from the “mere fact, if it be a fact,” that the fire originated from sparks emitted by a passing engine of the defendant. There was evidence in the case tending to show that live sparks of unusual size and in unusual quantities, on — 612 — the named occasion, were thrown by said engine a distance of 125 feet, and there was also evidence in the case from which the jury had the right to infer that no properly equipped and well-handled engine can possibly throw snch sparks in such quantities such a distance. In fact, this identical charge was, in the case of A. G. S. R. R. Co. v. Sanders, 145 Ala. 452, 40 South. 402, condemned as argumentative, and in that case this court held that the trial court committed no error in refusing to give it to the jury. While trial judges, as we have already said, should never give charges which have a misleading tendency, to a jury, we do not think that the judgment in this case should be reversed because the trial judge gave said charge 14 to the jury. The issues in this case, made by the evidence, were in sharp and positive conflict. If the evidence for the plaintiff was true, then the evidence for the defendant was untrue, and vice versa. The real question of fact, as we read the bill of exceptions in this case, was whether sparks from the defendant’s engine actually set fire to the plaintiff’s property or whether the property caught fire in some other way. At any rate, charge 14 could have been explained by the giving of an explanatory charge at the request of the plaintiff, and the plaintiff might well have asked such a charge. We cannot say that it is manifest that the giving of charge 14 to the jury misled the jury to the prejudice of the appellant, and for that reason this judgment should not be reversed on account of the giving of said charge. — Goldsmith v. McCafferty, 101 Ala. 663, 15 South. 244. (4) Charge 14% states the law correctly as applied to the facts of this case. Of course, it was for the jury, under the evidence, to say whether, after considering all the evidence in the case, they were reasonably satisfied that the engine was of proper construction, was equip — 613 — ped with proper devices and appliances to permit the escape of fire and sparks, was in good repair, and prudently managed and controlled at the time of the alleged injury. If all these elements concurred, then there could not have been an act of negligence, either on the part of the defendant or any of its servants or agents, reasonably inferred from any of the evidence in the case. (5) In this case there was no evidence tending to show that there was any defect in the defendant’s track or that it was guilty of any negligence, unless that negligence consisted in the improper equipment of its locomotive or in the way in which it was handled. There was evidence from which the jury had the right to infer, if they believed that evidence, that the locomotive was either improperly equipped or improperly handled. The court committed no error in giving charge 11 to the jury. — Farley v. M. & O. R. R. Co., 149 Ala. 557, 42 South. 747. (6) Charge 9 was argumentative and possessed a misleading tendency, and for this reason the trial judge might well have refused it. — B. R. L. & P. Co. v. Hinton, 158 Ala. 470, 48 South. 546; Southern Ry. Co. v. Dickens 161 Ala. 144, 49 South. 766; Ala. G. S. R. R. Co. v. Sanders, supra. We are not able to say, however, that the jury was actually misled by the charge, and for that reason are of the opinion that the giving of it to the jury should not operate to reverse the judgment. — Goldsmith v. McCafferty, supra. (7) While charge 13 was argumentative, and as applied to the evidence in this case possibly possessed a misleading tendency, the giving of the charge to the jury cannot be held to be a reversible error. . (8) As applied to the evidence in this case, charges 7, 12, and 36 were correct statements of law. There was no evidence that the defendant was guilty of an act — 614 — of negligence unless that negligence consisted in the improper equipment of the engine or in its improper management. (9) For the reasons set out in subdivision 6 of this opinion, the trial court cannot be put in error for giving charges 8 and 16 to the jury. (10) For the reasons set out in subdivision 1 of this opinion, charges 18, 19, and 20 were properly given to the jury at the defendant’s written request. (11) Charge 40, as applied to the conflicting evidence in this ease, correctly states the law. — Southern Ry. Co. v. Dickens, 161 Ala. 144, 49 South. 766. . (12) The verdict of the jury in this case was for the defendant. By that verdict the jury determined that none of the plaintiff’s property was destroyed by a fire which was due to the negligent causation of the defendant or of its servants or agents. Under the first, second, and fourth counts of the complaint there certainly would have been a verdict for the plaintiff for something unless the jury had determined as above stated. This being true, the trial judge certainly did not injure the plaintiff by eliminating count 3 from the complaint. (13) The court was not authorized, under the conflicting evidence in this case, to charge the jury that if they were reasonably satisfied from the evidence that the plaintiff’s property was set on fire by sparks emitted from an engine of the defendant, and that the said sparks were thrown about 125 feet to plaintiff’s property, they should find for the plaintiff. The trial court properly refused to give charges A and B which the plaintiff requested it to give the jury. —A. G. S. R. R. Co. v. Taylor, 129 Ala. 238, 29 South. 673. (14) Charge No. 30, given at the request of the defendant, has been frequently approved by this court. — 615 — The trial court committed no error in giving this charge to the jury. (15) The giving of charge X to the jury was not made a ground of the plaintiff’s motion for a new trial, and we are therefore without authority to consider it on this appeal. (16) The evidence on behalf of the plaintiff and the defendant in this case was, in many material ways, in a state of serious and sharp conflict. The jury was the forum to try the disputed issues of fact, and we are not of the opinion that their finding should be disturbed. We find no reversible error in the record. The judgment of the court below is therefore affirmed. Affirmed. All the Justices concur, except Dowdell, C. J., not sitting.