Tribette v. Illinois Central Railroad

Woods, J., delivered the opinion of the court. This is a suit brought by the appellant for damages resulting from the destruction of buildings of appellant, in the town of Terry, by fire communicated from the burning cotton stored upon appellee’s railway platform, the allegation being that the cotton was ignited by sparks thrown out by appellee’s locomotive, negligently. The declaration avers with particularity that the appellee negligently permitted the accumulation of a large lot of cotton, iu bales, at its depot, on an open platform, with no inclosing walls, and with an inflammable roof of pine boards; with no tarpaulins or other covering for said cotton, and without any means or appliances provided for the extinguishment of fires. It is averred, also, with particularity of statement, that appellee negligently permitted several closed box-cars to stand alongside said platform and cotton, thus preventing the throwing of the cotton from the platform after ignition; but, it is charged, that appellee, on the occasion in question, having an engine present, with capacity to have hauled said box-cars away, and so made practicable the dumping of said cotton on the ground, negligently omitted to remove said cars, and, in fact, refused to do so, because of' which, the fire spread over all the cotton there accumulated, and was communicated to appellant’s property, which was wholly destroyed thereby. The general issue was pleaded by the railroad company, — 227 — and on this three trials were had. The first trial resulted in a verdict for appellant, which was set aside by the court on motion of the counsel for appellee. The second hearing ended in a mistrial, the jury being unable to agree. The third trial resulted in a verdict for the railroad company, under a peremptory instruction from the court, and judgment was entered accordingly. From this action of the court below plaintiff appeals, seeking a reversal of the last judgment, and the re-instatement of the first verdict. The peremptory charge was not erroneous, if there was no evidence “to warrant a verdict for the plaintiff in any view of it which might be legally taken.” In other words, if there was no evidence reasonably tending to establish plaintiff’s contention, the peremptory charge was correct; If there was such evidence, then the charge was incorrect. The solution of the question presented will necessitate an examination of the evidence somewhat in detail. It was incumbent on the appellant to show that the fire was communicated from the engines of the railroad company. This was sought to be done, as it might be, by circumstantial evidence. This evidence was substantially this: A long, protracted drought prevailed, and inflammable substances were susceptible of ready ignition; a strong wind was prevailing at the time of the fire; about an hour before the fire was discovered, a locomotive, pulling a south-bound passenger-train, came in, and was stopped for a minute at, and then started on its way from, a point on the main line from which the wind blew the smoke from the engine directly to the spot where the fire originated; another train, a freight-train, followed the passenger, and went in on a side-track, first stopping to cut a crossing, and then pulling up a short distance, and finally halting near the point where the passenger-locomotive stood, and at a spot where the smoke from its engine also was driven by prevailing winds against the cotton at the point where the fire broke out finally; the odor of burning cotton was perceived ten or fifteen minutes — 228 — before the fire was-discovered, by persons two hundred yards distant on the west ’side of the railroad tracks and in the path of the wind; -when the fire at length made itself known, It was found to proceed from holes in two bales, in close proximity to each other, in which the fire was, and had been, manifestly, slowly eating its way smoulderingly; the cotton bales were standing on end near the edge of the platform, and in about two feet of the box-cars hereinbefore alluded to ; the fire, when first seen, had burned a hole in each of the contiguous bales of the size of a peck-measure, or larger; the holes exhibited a glowing surface when the wind fanned them, and the blaze would, at such fanning, start out and creep up to the top of the bales; these burning holes were six or eight inches from the bottom of the bales, and under one. of the lower ties on each bale, and these burning holes were in the adjacent edges of the two bales, and just behind a post resting on the platform and constituting one of the supports of the roof before referred to ; the action of the fire was such as characterizes the ignition of cotton from a spark or coal; there was absence of any suggestion of other means of communicating a fire of this character than the railroad’s engines; then, anticipating the evidence of the railroad company that its locomotives were properly constructed and equipped and carefully handled, the appellant introduced a witness who testified that about three miles north of Terry, where the fire occurred, and a few minutes only before the passenger-locomotive passed the'scene of the conflagration, sparks of such size were emitted from its smoke-stack as to be seen by him at noon on a clear, sunshiny day and at a distance of a hundred yards, and dry grass was thereby fired beyond the railroad’s right of way — that is, at a distance o.f more than fifty feet from the passing engine. It is not disputable that the spot on the platform where the cotton was fired was sixty-five to seventy-five feet from the point where the two locomotives stopped, and from which the passenger-locomotive started on that occasion. — 229 — Affirmatively, the appellee undertook to show that a hid, Jake Terry by name, was the originator of the fire. Grant all that the company’s evidence on this point showed, or tended to show, and it is valueless notwithstanding. By the defendant’s witness it is shown that Jake Terry set fire with a blazing match a few moments only before the alarm was given. The fire was found to have started near the bottom of the bales, and to have been slowly burrowing and eating its way for a very considerable period of time. It was set by, not a blaze, but a spark or coal. Concede the absolute verity of Johnnie Burnett’s statement as to Jake Terry’s conduct, and still not a ray of light will be turned upon the cause of the fire. We disencumber the case by laying out of view this affirmative defense as absolutely worthless. Fully credited, it affords no help to one seeking the cause of the fire. Negatively, the appellee showed skill and care in the construction and handling of its engines. This statement of the evidence will obviate the necessity for any argument on this branch of the case. By circumstances quite clear and convincing, all disinterested minds must agree that, with reasonable certainty, the fire was caused by one or the other of the locomotives at Terry on that day. It does not at all militate against this view that appellant is unable to say which of the two engines was the cause of the fire. It is not of vital importance to establish what engine did the work. The essential inquiry is, did an engine of appellee cause the conflagration? To this question there can be but one answer, as it appears to us. This brings us to the other branch of the case involved in the peremptory instruction given for appellee in the court below. And at this point, as has been very properly said by counsel for appellee, the railroad company is first required to speak. It ivas not required to show that Jake Terry or any one else set out the fire. It was appellant’s duty to first establish the- agency of one of the locomotives in the catas — 230 — trophe. This having been done, in our opinion, with reasonable certainty, the appellee is now required to take up the burden of meeting the prima facie case made out against it. We think it may be fairly said that its evidence as to the construction and equipment of the two locomotives shown to have been in position to have caused the fire, and as to the skill and care of its servants in handling and managing them on that day, meets the requirements imposed upon it. While the mere words employed by the two engineers who then had charge of the locomotives might have been substituted by others more precise and more explicit, yet fairness constrains us to say that, from all the evidence of all the witnesses of appellee, the engines are shown to have been in good order, and with a proper spark arrester each, and were handled with due care. The spark arresters in both smokestacks were examined shortly before and shortly after the fire, and were found in good condition. It is shown by the witnesses for the defendant that all engines emit some sparks when in motion; that an engine capable of performing its required work which does not throw sparks is an impossibility. It is said that all engines throw sparks, and in working must, from their very construction, throw them all the time; but they may emit more or less sparks under varying conditions. The evil cannot be wholly prevented, but it may be, and is in every properly constructed locomotive, reduced to comparative insignificance. With a proper spark arrester and cone, sparks which would otherwise fly out in large volumes and of every size, are rendered almost powerless for hurt. Through the meshes of the arresters nothing but very fine sparks or cinders can escape; they are beaten on the cone and in the arrester, and reduced, before escaping into the air, into minute particles; they are so small as to lose their power of ignition quickly after emerging into the air; they fall harmless in the cab, and, though hot to the touch, have no life in them, and are incapable of igniting substances with which they come in contact; they ordinarily — 231 — fall in ten or twenty feet after escaping from the smokestack, though, with a strong wind, they might be carried thi rty or forty or fifty feet. This, in brief, is the defense of non-negligence made by the appellee, and if this stood unchallenged, we should not hesitate to affirm the judgment on the last trial; but there is in the record the anticipatory evidence to which we have already alluded. - Lewis Harvey testifies to seeing, at high noon, on a clear, sunshiny day, and at a distance of a hundred yards, “plenty of sparks” flying from the engine of the passenger-train, and firing grass beyond the right of way of appellee. That the minute particles of coke, which only can escape through a proper spark arrester, as testified by appellee’s witnesses, could have been so seen by Harvey, or that they could have set grass afire at the distance he describes, is incredible. But, in determining the rightfulness of the court’s action in charging peremptorily for the appellee, we are bound to assume the absolute credibility of all the evidence of the plaintiff below. The right to withdraw the case from the jury rests upon that very assumption'in favor of the plaintiff’s evidence. In peremptorily instructing for the defendant below, the learned judge virtually said, the absolute verity of Harvey’s evidence is to be assumed; but, grantingthe assumption, it raises no issue — it presents nothing for the jury’s determination. But were there disputable facts? Was there only one inference to be drawn from all the evidence? Would all men of reason be shut up-to one inevitable conclusion? If not, the case should have been submitted to the jury. Wherever there is any reasonable ground for diversity of opinion, it is the judgment of twelve men which should he called to decide, and not that of one. We cannot shut our eyes to Harvey’s evidence. It may, in truth, be of little real worth, but that is not for us to say. We are driven to assume its perfect truth in considering the point now in hand; and, thus assuming, we cannot affirm that it does not discredit, or reasonably tend to discredit, the tes — 232 — timouy of the railroad company as to the construction and equipment of the locomotive, and reasonably tend to establish the appellee's negligence in that particular. It remains now to pass upon the action of the court in setting aside the first verdict. On the first trial several exceptions were taken by appellee to the rulings of the court upon the introduction of the evidence of several witnesses. The admission of tire evidence of Dr. Jones, in so far as it was sought to show that the witness had notified the station agent of the danger to the town from the accumulating cotton, was error. Whether there Avas a dangerous and uiiAvarranted accumulation of cotton on the platform was a fact to be proved like any other, and the witness’ opinion was not admissible. Whether the defendant was derelict in duty in storing cotton on its platform, and was negligent in such fashion as to impose liability, were questions of law, to be determined by the court, and not at all by the opinion of a witness. And this duty the court performed in virtually withdraAving from the jury the consideration of any supposed negligence springing out of the accumulation of cottoú on the platform. There was an utter failure to show negligence in this matter. The transportation of cotton in bales, at certain periods, is the chief business of appellee. The proofs show no undue accumulation — no negligence in storing on the platform. The fire occurred on Sunday, and on that day no cotton was ever shipped. Eighty-five of the one hundred and sixty-eight bales burned were delivered to the railroad late Saturday evening; the remainder had been there so short a time as to preclude thought of any misconduct. This, in effect, was what the court below properly held, in refusing to charge for appellant to the contrary, and any attempt to’ put the jury in possession of Dr. Jones’ opinion Avas erroneous. The admission was erroneous, moreover, because the conversation Avas not in reference to the cotton destroyed, Avas — 233 — some time prior to the fire, and did not touch the conditions existing at the date of the burning. The evidence of Fitzhugh, Downing and Hester should have been excluded. The controversy was as to the equipment and management of one of two locomotives, and not of others. What, was the condition of these engines on the occasion of the fire, was the subject of investigation. What other engines, handled by other drivers, on other occasions, did, could shed no light on the particular inquiry involved. The tendency of such evidence was to confuse and'mislead the jury, and prejudice the appellee. But this would appear to be not an open question in this state. Said Ellett, J., in Mississippi Central Railroad v. Miller, 40, Miss.: “ The witness then proceeded to state that he had often known the cars of defendant to pass over the public road near his house without ringing their bell or blowing their whistle, and that they sometimes went down about dusk without head-lights. Nelly, another witness for plaintiff, was also permitted, after like objection, to testify that he had known trains sometimes to run in the night without head-lights, but he did not know as to this particular train. This evidence was inadmissible. The question at issue was, whether the death of the mule resulted from the want of reasonable and proper care at that particular time, and by the agents in charge of that train. The affirmative of that proposition would not be established by showing that other agents of the defendant, at other times and places, had been guilty of misconduct, or had violated the law regulating' the running of their trains.” This 2>rinciple was recognized and re-affirmed in the subsequent case of Southern Railroad Co. v. Kendrick, in the same volume of our reports. The same principle is applicable in the present instance. It is founded in sound reason, and is settled by authority with us. The evidence of Covington should have been excluded likewise. From his testimony, it is more than uncertain — 234 — whether either of the locomotives of which we have been speaking, fired his field. It is equally uncertain whether any engine fired it negligently, or by sparks. The fire was spreading out from the tracks, and may just as well ,be supposed to have been set by a coal or spark from the ash-box, or by a match thrown out by a passenger. In any aspect in which it may be regarded, this evidence should have been wholly excluded. It may not be unnecessary to say directly what we have said by implication already — that the evidence of Lewis Harvey was properly admitted. It was pertinent on an issue of fact, and that fact was as to the proper equipment of the passenger-engine. It was not an effort to establish the fact to be proved by piling presumption on presumption, as appellee’s counsel contend. It was a perfectly legitimate method of- showing, by circumstantial evidence, that the spark-arrester of the particular locomotive was not in good condition,""and, consequently, that appellee was negligent in using it in its unsafe state. "We are unable to understand why the cross-examination of Terry as to Conway’s conversation with Jake Terry, was admitted. Conway was not a witness; he was not a party to the litigation; he seems to have had no interest in the matter. Is the effort made to impute his curiosity to the appellee? This evidence as to Conway was improperly admitted, we think, and may have been prejudicial. In the rulings of the able court below on the instructions given and refused, we find a single error. The sixth instruction is open to the just criticism of appellee’s counsel. It seems to require a decision by the jury on a preponderance of the evidence, even if insufficient to reasonably satisfy the mind. It left no room for the action of the mind unsatisfied by the evidence produced. It may not be amiss to add that the views of the court below, involved in the refused charges asked by the appellant, seeking to fix liability on the railroad for supposed — 235 — negligence in storing cotton on its platform, as it did, and in failing to cover the same with tarpaulins and in not keeping •appliances at hand for the extinguishment of fires and in placing the box-cars on the side-track, were altogether correct. There was no such delay in shipping cotton as to excite comment. Eighty-five of the one hundred and eighty-six bales were received less than a day before the fire, and we see no room for the assertion of negligence in accumulating cotton in large and dangerous quantities. The cotton was baled in the customary fashion of the country, and was received, handled and stored in the usual manner. The menace to the town could not have been regarded as serious, we are constrained to believe, seeing that appellant and others had deliberately increased the menace by themselves enlarging the cotton platform at the station, in order that more ■cotton might be stored than the appellee’s platform could hold. The cases cited by counsel, where liability was imposed •for keeping or permitting grass or other inflammable materials on the right of way, whereby fires were set out by coals from the ash-box, or sparks from the engine, and then communicated to fields or houses of adjoining property-holders, are not applicable to the case at bar. It was the duty of the company in those cases to keep the inflammable materials off its track and right of way, because of the almost certainty of dropping fire from the ash-box, or sparks from the same source, as well as from the smoke-stack, in the ordinary and careful handling of locomotives in hauling trains, and so communicating fire to adjoining property. It was the duty of the railroad company to remove these sources of constant -danger. But the principle is not to be invoked in the case we are dealing with, for it is the duty of the carrier to receive and store the cotton offered it for shipment. That is one of the ends and aims of the railway’s existence. That an unprecedented dry season required the appellee to procure and use tarpaulins, a thing never before thought — 236 — necessary, is not true; and this remark may be applied to the contention as to appellee’s supposed negligence in likewise failing to procure and keep appliances for the extinguishment of fires. Mayes & Harris, for appellant, Filed a suggestion of error, reviewing and discussing at great length the facts of the case, contending that the court had erred in its conclusions drawn from the testimony, and especially in announcing views of the evidence unfavorable-to appellee, and in commenting on the weight of the same. There was no negligence in having the box-cars adjacent to the cotton on the platform. They had been placed there for convenient loading of this very cotton on the morrow. It was a natural and proper thing to place them where they were. The entire case has received repeated and protracted consideration by us, with the result of reversing the judgment obtained under the peremptory instruction of the court, but with no re-instatement of the first verdict. Reversed and remanded.