Alabama & Vicksburg Railway Co. v. Aetna Insurance

Whitfield, C. J., delivered the opinion of the court. These two cases are submitted together, as they depend upon the same state of facts. We do not think any of the objections made by appellant worthy of serious consideration except these two: First, that the compress company was guilty of contributory negligence in placing the cotton where it was; and, second, that it was error to have admitted testimony showing the emission of sparks just before and just after the fire in question, by other engines than the three which appellant claims must have set out the fire. In respect to the first proposition, counsel for appellant say in their brief: “We are not insisting that the act of so placing the cotton was negligence per se, nor, at present, that the question of whether or not the act of so placing it constituted negligence should have been submitted to the jury, but that the question of whether or not proper precautions were taken to guard against the recognized danger should have been submitted to the jury.” But their citation of authorities and — 779 — argument are almost wholly addressed to the purpose of showing that it was contributory negligence on the part of the compress company to store this cotton in its own lot in the usual and ordinary way, some ninety feet from the railroad track. So far as proper precautions are concerned, we think the testimony abundantly shows the taking of all proper precaution by the compress company. So far as the contention that it was contributory negligence on the part of the compress company as to where the cotton was placed is concerned, it is sufficient to say that this was disposed of by the case of Home Ins. Co. v. Railway Co., 70 Miss., 134, 12 South., 159. The sharp conflict in authorities on this subject was recognized in that case, and this court, upon the fullest consideration, aligned itself with those which hold “that one who uses his land in a natural and ordinary way, for purposes for which it is suited, is not required to anticipate negligence by the adjacent railway company; and his failure so to manage his business as to protect his property from loss against such negligence is not contributory negligence on his part.” As said by Chief Justice Beasley in the case of Salmon v. Delaware Railroad Company, 38 N. J. Law, 5, 20 Am. Rep., 356: “No support in any of these authorities can be found for the assumption that, if a landowner places his stacks of grain or hay on the confines of his land, that thereby, in a legal point of view, he becomes a contributor to á fire occasioned by negligence on the land of his-neighbor. By such an act, it is true, he takes the risk of the consequences of an accidental fire on the contiguous premises, but not of a neglect which he can be called upon either to anticipate or to guard against.” The principle is that where one is making that use of his property for -which it was intended, and is so using it in the way in which it would usually and ordinarily be used for that purpose, he is strictly in the exercise of a legal right — merely asserting a legal dominion over his own; and that, per consequence, contributory negligence is not legally — 780 — predicable of that sort of use of bis property. An act, to constitute contributory negligence, must be an act, as to place and time and circumstances, illegal in its nature; and it is a mere confusion of thought to characterize as contributory negligence the use of one’s own property in a purely legal way. It is not that the doctrine of contributory negligence in the field of its proper operation is at all infringed; but that that doctrine has no field for operation in the condition of facts stated. It might have been sufficient to say that the case of Railway Co. v. Fried, 81 Miss., 314, 33 South., 74, distinctly reaffirms the doctrine of Miss. Home Ins. Co. v. Railway, supra. Justice Terral, speaking for the court, said: “It merely puts upon the owners the risks arising from the nonnegligent use of its railroad by the company operating on the track, and nothing more. The company itself is under a duty of not exposing the property upon the adjacent lots to the risk of fire arising from the negligent operation of its engines.” And it is insisted lastly by counsel for appellant that the Fried Case decided in the next two sentences that the court should have submitted to the jury whether the, very use of the compress company’s own property in the usual and ordinary way for the purpose for which it was suited, which the court had just said could not present a case in which contributory negligence could be charged against the compress company, constituted or not contributory negligence. This would put the court in an inconsistent attitude. 'Manifestly, the court had just decided in the language which we have quoted that, if the compress company was merely using its lot for the storage of cotton in the usual and ordinary way — the way suited to its use as a cotton storage lot — then it was legally impossible that in such use it could be guilty of contributory negligence, within the proper understanding of what contributory negligence is. Of course, having decided just that thing, the court did not mean by the inadvertent expression in the opinion that the question of contributory negligence was left — 781 — by the learned judge to the jury, to reverse its previous declaration. It was not so left to the jury. What was meant — as shown by the last two clauses of the second paragraph of the opinion, taken in connection with the declaration just mentioned in the foregoing part of the second paragraph — was simply this: that the question whether the compress company was guilty of contributory negligence in the use of its lot by using it in a way not usual and not ordinary, a way not suitable for proper cotton storage thereon, should have been left to the jury. In other words, all that was meant to be said was that it was for the jury to say whether the compress company was devoting its lot to an improper use in putting cotton there — whether the storage of cotton on that lot was an improper use to put that lot to — one not usual or ordinary. It would be a question of fact whether the lot was suitable for cotton storage, and whether the storage of cotton thereon was a usual and ordinary use of the lot; and that might 'have presented for the jury a question of contributory negligence or not. ■ But it was not meant (granting that the lot was suitable for cotton storage, and granting that such use of the lot was a usual and ordinary use) that any question of contributory negligence could arise to be submitted to the jury. It was simply one of those inadvertent expressions thrown off by the judge writing the opinion cúrrente calamo, but not one which ought to have been misunderstood in view of the plain declaration of said paragraph 2 of said opinion affirming the doctrine of the Miss. Some Ins. Co. Case. As to the second proposition. It is distinctly held by the supreme court of the United States in Grand Trunk Railway Co. v. Richardson, 91 U. S., 470, 23 L. Ed., at page 362, that it is competent to prove the emission of sparks capable of setting out fire before and after the fire was set out, and about that time, without identifying the particular engine which set out the fire in a particular case. That court on that subject says: — 782 — “The third 'assignment of error is 'that plaintiffs were allowed to prove, notwithstanding objections by the defendant, that at various times during the same summer before the fire occurred, some of the defendant’s locomotives scattered'fire when going past the mill and bridge, without showing that either of those which the plaintiffs claimed communicated the fire was among the number, and without showing that the locomotives were similar in their make, their state of repair, or management, to those claimed to have caused the fire complained of. The evidence was admitted after the defendant’s case had closed. But, whether it was strictly rebutting or not, if it tended to prove the plaintiff’s case, its admission as rebutting was within the discretion of the court below, and not reviewable here. The question, therefore, is whether it tended in any degree to show that the burning of the bridge, and the consequent destruction of the plaintiff’s property, were caused by any of the defendant’s locomotives. The question has often been considered by the courts in this country and in England; and such evidence has, we think, been generally held admissible, as tending to prove the possibility, and a consequent probability, that some locomotive caused the fire, and as tending to show a negligent habit of the officers and agents of the railroad company. Piggot v. R. R. Co., 3 M. G. & S., 229; Sheldon v. R. R. Co., 14 N. Y., 218, 67 Am. Dec., 155; Field v. R. R. Co., 32 N. Y., 339; Webb v. R. R. Co., 49 N. Y., 420, 10 Am. Rep., 389; Cleveland v. R. R. Co., 42 Vt., 449; R. R. Co. v. Williams, 44 Ill., 176; Smith v. R. R. Co., 10 R. I., 22; Longabaugh v. R. R., 9 Nev., 271. There are, it is true, some cases that seem to have asserted the opposite rule. It is, of course, indirect evidence, if it be evidence at all. In this case it was proved that engines run by the defendant had crossed the bridge not long before it took fire. The particular engines were not identified, but their crossing raised at least some probability, in the absence of proof of any known cause, that they caused the fire; and it seems to — 783 — us that under the circumstances this probability was strengthened by the fact that some engines of the same defendant at other times during the same season had scattered fire during their passage.” It will be observed that such testimony' is held to be competent on the ground that, though it is not direct evidence, it nevertheless does tend to prove the possibility, and the consequent probability, that some locomotive caused the fire, and that it further tends to show a negligent habit of the officers and agents of the railroad company. It will be further observed that the United States supreme court in this ease admits that there are authorities to the contrary, but states that the conclusion it reached was the one sustained by the weight of authority in this country and in England. In the valuable note to this case there is the most abundant citation of authorities on all related propositions, and on this particular proposition it is laid down as settled that such evidence is competent. See cited, amongst many other authorities, Henry v. R. R. Co., 50 Cal., 176; Smith v. R. R. Co., 10 R. I., 22; Annapolis & E. R. R. Co. v. Gantt, 39 Md., 115; Cleveland v. G. T. R. R. Co., 42 Vt., 449. And, indeed, it is pointed out in this note that, in order to raise a case of negligence by destruction by fire of property adjacent to a railroad in New York it is required to show by additional proof “that defendant’s engines had at other times before or after the burning set out other fires”; thus, of course, recognizing the competency of such proof. This general rule we understand to be settled in the Tribette Case, in 71 Miss., at pages 228-231, 13 South., 901. In that case the court held competent the testimony of Lewis Harvey for the plaintiff to the effect “that about three miles north of Terry he saw on a clear, sunshiny day, plenty of sparks flying from the engine, and firing grass beyond the railroad’s right of way.” This testimony was offered to show a setting out of fire three miles from the place where the fire occurred. As said by Justice — 784 — Woods in that case: “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 ?” We think the rule stated by the supreme court' of the United States is the sound rule on this point. Besides, there was no identification in this case of any engine as being the one which set out the fire. Affirmed.