Baldwin's v. Alabama & Vicksburg Railway Co.

ANdeesoN, J". (after stating the facts as above.) delivered the opinion of the court. There was no error in refusing instruction No. 1 for the defendant, because not applicable to the facts of this case. This instruction was asked on the authority of Morier v. Railway Co., 31 Minn. 351, 17 N. W. 952, 41 Am. Rep. 793. In that -case the court held that the railroad company was not responsible for the fire which destroyed the property of the plaintiff, set out by the section hands for the purpose of warming their food, because in so doing they were not engaged about the master’s business. They were acting without the scope of their authority, and pursuing their own private ends. In that case the court used this language: “Nor is there any evidence that it was the duty of these section men to exercise any supervision over the right of way, or to extinguish fires that might be set •out on it So far as the evidence goes, their employment was [58] exclusively in. repairing the railroad track.” Tlie instant case is clearly distinguishable from that. Here it was' the duty of' tlie section master to supervise the right of way, keep it in. proper condition so that fires would not extend from it to the property of others, and extinguish such fires when set. out. The record in this case sufficiently shows such to be among his duties; and, if it did not, it is a matter of common knowledge,, of which tlie court will take judicial notice. In Railroad Co. v. Slinson, 74 Miss. 453, 21 South. 14, 522, the court held: “And as 1» the scope of that agency [referring to' the section master] 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 the track and right of way in proper condition.” So that, in setting out the fire and in failing to extinguish it, even though it was done for their own private purposes, the section foreman and hands were acting within the scope of their authority. They were engaged about the business of their master. They were required not to do the very thing they did do, if dangerous- to- the property of' others. There was no error in refusing, the peremptory instruction. It is contended that no negligence was shown; that the act off the section crew in setting out the fire was shown not to- have been the proximate cause of its spreading to plaintiff’s orchard ; but the sudden springing up of the wind was shown to have been the intervening efficient cause, and, therefore, the court should have directed the jury to find for the defendant. In-view of the condition of the right of way at this point, taken in-connection with tlie other facts and circumstances shown, there-was sufficient evidence to go to the jury on this question. It cannot be said that the verdict was excessive. The jury allowed the plaintiff about $1.50 per tree. The testimony shows that they were worth from $1 to $4 apiece. Affirmed.