Drake v. Yazoo & Mississippi Valley Railroad

Whitfield, C. J., delivered the opinion of the court. McNeill’s testimony makes it clear that the fire was set out by engine No. 10, on November 23. The defendant was .then under the duty to meet and explain away the prima facie case thus made. “For the purpose of rebutting the presumption, the evidence must be as broad as the presumption itself, and must satisfactorily rebut every negligent act or omission which might, under the circumstances of the case, reasonably or naturally have caused the fire.” 13 Am. & Eng. Ene. L., 504. And, again, the rule is announced {Id., 504, 505): “The general rule on this subject is that, if the defendant shows that the engine alleged to have caused the fire was of the proper construction, and equipped with approved devices and appliances to prevent the escape of fire and sparks, was in good repair, and prudently managed and controlled, the prima facie presumption arising from the mere communication of fire will be rebutted. The presumption of negligence from the escape of fire, however, cannot be rebutted by merely showing that the machinery and appliances were of proper character and were, at the time, in good condition, without further showing that due care was employed to avoid such injuries; to accomplish which, it should be shown, not only that the engine was in charge of competent and skillful servants, but also, at the particular time, and under the circumstances in question, it was carefully managed and controlled.” See, in support of these views, the authorities collected in the admirable brief of counsel for appellant, which is so clear and perspicuous in its reasoning, and so accurate in its marshaling of the authorities, that we direct it to be printed in full by the reporter. Applying these principles to the case in hand, it is manifest that the court below erred. Rand manifestly operated this engine on the twenty-third, and there is no testimony from the [106] engineer or fireman as to how the train was handled that day, or as to the kind of spark arrester or its condition, or that the engineer and fireman aforesaid were skillful and competent servants. The first instruction for defendant was manifestly erroneous. See, specially, Wilson v. Railway Co., 16 S. C., at pages 591, 592, and Railroad Co. v. Quaintaice, 58 Ill., 393. Spark arresters are not even mentioned in it. There is absolutely no evidence that, at the time (November 23), the fireman and engineer were competent and skillful, or that they used due care at that time. What we have said indicates the course the case should take on a new trial. Reversed and remanded.