Mobile & Ohio Railroad v. Stinson

Woods, C. J., delivered the opinion of the court. When Page, the section master, made the statement to the [457] witness, Paine, as to the origin of the fire, which partially destroyed the pecan grove of appellee, the conflagration was then raging, and it was a declaration explaining other parts of the act of the destruction of the grove, of which it was itself a part. The injury complained of was the burning of the grove, on account of the carelessness of the appellant’s servants in setting out fire on the right of way of the railroad, and any declaration made by the section master, the servant who set out the fire, as to the origin or progress of the fire, while the conflagration was yet incomplete and unfinished, was clearly admissible, in our opinion. In that case such declarations were part of the res gestee, and not a narration of a past and completed event. To confine the admissibility of such declarations to any one point of time, in the course of the transaction being inquired about, would be to arbitrarily exclude, often, not to say always, many pieces of evidence which would shed light upon the whole affair, and which were parts of one entire event. We know of no more clear and concise statement of the law in such case^th^n is to be found in the case of Mayes v. The State, 64 Miss., and that case, taken with the later one of Yazoo & Mississippi Valley Railroad v. Jones, 73 Miss., 229, must govern this contention in the present appeal. It is earnestly insisted that to permit the judgment to stand would overturn the well-settled principle that one is not liable for damages for injuries suffered by another by reason of fire spreading from the premises of the first named to those of the other party, where no negligence is proven. But this contention is unsound. Multitudes of cases can be imagined where proof of the fact of putting out fire at all would authorize a presumption of negligence. In the present case, the evidence that fire was put out, on a windy day, in high dead grass on the right of way, which immediately adjoined the premises of the appellee, likewise covered with dry grass of considerable height and great thickness, and, in the absence of any other evidence as to the course and progress of the flames, warranted [458] the jury in applying their experience and common sense, to a solution of the matter, and in concluding that the fire naturally spread through this highly combustible material on the right of way to the highly combustible material on appellee’s adjoining land, and that there was negligence in thus setting the grass afire and permitting it to spread out on appellant’s lands. We cannot say the verdict is unsupported by evidence, and we do not feel authorized to disturb it. Affirmed. Appellant’s attorneys filed an elaborate suggestion of error, urging the points indicated in the following opinion: Woods, C. J., made the following response for the court to suggestion of error filed to the former (the foregoing) opinion delivered in this case: 1. There was proof of the agency of the section master other than that contained in his own declarations. There was no dispute as to his agency. And as to the scope of that agency, we will employ that common knowledge possessed by mankind generally, in ascertaining whether it was his duty to look after and clear off the company’s right of way. We take knowledge of the fact that it was his duty to keep both track and right of way in proper condition. 2. The appellee was not guilty of contributory negligence in failing to cultivate his pecan grove so as to keep down growing grass. We know of no reason for holding that a man is required to keep down grass in a pecan grove any more than in a meadow or cornfield. The law is <£ that one who uses his land in a natural and ordinary way for purposes to which it is suited, is not required to anticipate negligence by the adjacent railway company, and his failure to so manage his business as to protect his property from loss against such negligence is not contributory negligence on his part. ’ ’ Home Ins. Co. v. Railway Co., 70 Miss., 119. 3. That the fire which destroyed appellee’s pecan grove originated upon the right of way of appellant company was shown [459] by evidence other than that contained in the section master’s declarations. The agreed statement of counsel, sent us after the argument of the cause, is to the effect that the fire was seen by a witness, not the section master, on the right of way before it had reached the field of appellee. Reference to the stenographer’s notes, since sent us also, shows the correctness of this agreed statement of the counsel. 4. The letters of appellee, and his sworn statement to the company, in which the value of the trees was said to be fifty cents each, do not preclude appellee from showing the truth, and establishing the real value of the trees. The letters and statement were written with a view to securing a settlement by compromise and without suit, and that the value of the trees was greater than that which appellee named in his letters and statement, is clearly shown by abundant evidence other than his own. We adher'd to our former opinion, and the suggestion is denied.